C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1. The impugned order passed by the court below rejecting the plaint under the provisions of Order 7 Rules 11(a) and (d) respectively of the Civil Procedure Code is running in 67 pages. We wonder how many pages it would have taken for the Presiding Officer to dictate a full-fledged judgement disposing of the suit on merits. We are not able to understand why repeatedly the very same mistakes are being committed by the courts below while deciding the applications under the provisions of Order 7 Rule 11 of the CPC . Why the courts below are not ready to apply their minds before passing an appropriate order in accordance with law ? This very bench in last four months of the present sitting must have passed not less than 25 orders explaining the true purport and scope of the provisions of Order 7 Rule 11 of the CPC , but all in vain. We have now started gathering an impression that plaints are being rejected mechanically only with a view to earn appropriate points as rejecting a plant is as good as deciding the whole suit. We hope that such impression in our mind is erroneous and not true.

2. This Appeal is at the instance of the original plaintiff and is directed against the judgement and order passed by the 4 th Additional Senior Civil Judge, Navsari, dated 21 st March 2020 below Exhibit 142 in the Special Civil Suit No.50 of 2014 instituted by the appellant herein, by which the court below rejected the plaint substantially on the ground that the suit instituted by the plaintiff fails to disclose any cause of action and the suit otherwise also is time barred.

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

3. The facts giving rise to this Appeal may be summarised as under :

4. For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and respondents herein shall be referred to as the original defendants.

5. The Special Civil Suit No.50 of 2014 instituted by the plaintiff pertains to a parcel of land with superstructure on it in the form of a cinema theater situated in the Navsari town of the State of Gujarat.

6. The plaintiff is a company registered under the Companies Act . A partnership firm by name M/s.Natraj Theater came into existence in the year 1971. On 26 th May 1994, the said partnership was reconstituted and consisted of sixteen partners. The suit property was of the ownership of the said partnership firm and conducted the business of exhibiting films at the said Theater. It is the case of the plaintiff that in the year 1995 on account of financial constraints all the sixteen partners of the firm agreed to transfer their shares in the partnership firm as well as the suit property in favour of the plaintiff company, namely the Bardoli Shreerang Exhibitors on 7 th October 1997. Five partners of the firm executed an agreement to sell their shares in the suit property in favour of the plaintiff company. Nine more partners, and later on, the remaining two partners, also executed similar agreements in favour of the plaintiff company. It is further the case of the plaintiff that on 20 th March 1998, all the sixteen partners of the firm jointly executed a Page 3 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 notarized confirmation deed in favour of the plaintiff company and admitted to have executed an agreement to sell the suit property in favour of the company during the period between May and July 1998. Eleven out of the sixteen partners executed the sale deed in favour of the plaintiff company transferring their shares in the suit property in favour of the same company. According to the plaintiff, thus 70% of the share of the suit property was transferred in favour of the plaintiff company by virtue of such sale deed.

7. The plaintiff Bardoli Shreerang Exhibitors are also said to have filed a Civil Suit against the remaining five partners seeking specific performance of agreement to sell the property. Such a suit is stated to be pending. Five partners, namely Hiralal Dhansukhlal, Harilal Dhansukhlal, Manoharlal Dhansukhlal, Sakarlal Dhansukhlal and Dhirajlal Dhansukhlal, who had not executed the sale deed in favour of the plaintiff company and against whom the said suit for specific performance was instituted have assigned their rights in favour of the two brothers, namely Mukesh Ramanlal Nayak and Pradip Ramanlal Nayak respectively, on 29th June 1998. The two brothers, on the strength of such assignment, were trying to control the cinema business. In such circumstances, the plaintiff company filed the Regular Civil Suit No.116 of 1998. In such suit, they also prayed for interim injunction. The application for interim injunction came to be rejected vide the order dated 25 th September 1998. However, the District Court allowed the appeal vide order dated 19th December 1998. Such order came to be affirmed by the High Court in revision.

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

8. The five partners named above, who had not executed any sale deed in favour of the Bardoli Shreerang Exhibitors and their two assignees, namely Mukesh Ramanlal Nayak and Pradip Ramanlal Nayak, instituted the Special Civil Suit No.19 of 1999 before the court of Civil Judge, Navsari, against the Natraj Theater, its directors and partners, making multiple prayers including one for taking account of the partnership firm. One of the reliefs was for order of restraint against the remaining eleven partners from entering the suit premises and running the business.

9. The trial court granted such injunction and thus put the plaintiff therein, five partners and their assignees in control of the partnership business. Some of the aggrieved partners out of the remaining eleven challenged such order before the High Court by filing the Appeal from Order No.413 of 1999. The High Court allowed the Appeal by judgement reported in AIR 2000 Guj 80 and restrained the assignees from interfering in the partnership firm and recognised the right of all the sixteen partners to run the business. The matter was carried to the Supreme Court. The Supreme Court provided for a formula under which the assignees were permitted to run the business upon depositing a sum of Rs.1 lakh every month before the trial court. The plaintiff company was allowed to withdraw 70% of the said amount without furnishing security. In case any default was caused by the assignees, the plaintiff company would be entitled to move the trial court for modification. On the premise that the said assignees had failed to deposit the amount as directed, an appropriate application was moved before the trial court and also granted by an order dated 30th August 2001. The trial court Page 5 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 restored the order of the High Court. Eventually, the suit itself was withdrawn. On 18th September 2010 and 18th March 2011 respectively, the said Mukesh Ramanlal Nayak and Pradip Ramanlal Nayak as assignees, executed sale-deeds in favour of the defendants herein. In such circumstances, the plaintiff instituted the Special Civil Suit No.50 of 2014 on or around 15 th July 2014, seeking a declaration that the said sale deeds are illegal, unlawful and void-ab-initio and for a further declaration that under such sale deeds the so-called purchasers would derive no right, title or interest in the suit properties.

10. The plaintiff also prayed that on the basis of such sale deeds the defendant would have no right to undertake any construction on the suit properties or to make any change in the existing construction. The plaintiff herein also moved an application Exhibit 5 and prayed for injunction. Such application was partially allowed by the court below and the defendants herein came to be restrained pending the suit from putting up any construction on the disputed property and from transferring the same to anyone in any manner. Such order passed on an application Exhibit 5 came to be challenged by the defendant by way of the Appeal from Order No.161 of 2015 in the High Court. The Appeal from Order came to be dismissed vide order dated 29th June 2015.

11. A learned Single Judge of this Court, while dismissing the Appeal from Order, observed as under :

7. At this stage therefore when the very transfer is under doubt and prima facie doubt is established, permitting the purchasers to continue with the development of the suit lands which would also include transfer of the property, would give rise to multiple third party interests and possibly multiple subsequent litigations."

12. It appears that thereafter the defendants nos.5 to 7 respectively preferred the application Exhibit 142 in the Special Civil Suit No.50 of 2014 and prayed for rejection of the plaint substantially on the ground that the suit instituted by the plaintiff is time barred and the cause of action pleaded in the plaint could be said to be illusory.

13. The court below adjudicated the application Exhibit 142 and vide the impugned judgment and order allowed the same rejecting the plaint on the ground that the same fails to disclose any cause of action and also on the ground that the suit is time barred having regard to the period of limitation as prescribed under Article 58 of the Limitation Act .

14. Being dissatisfied with the impugned judgement and order passed by the court below rejecting the plaint, the plaintiff is here before this Court with the present Appeal.

15. We must first look into some part of the pleadings in the plaint as regards the cause of action :

Natraj Theatres illegally and without any right and contrary to the provisions of law and going contrary to the rules of the local authorities and its clear declaration has been made by Mukesh Ramanlal and others in the written reply to the Regular Civil Suit No.47/2011. Moreover, the defendants of this suit illegally and in unenforceable manner and by unauthorized transaction and under its guise have Page 12 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 demolished all the properties/ constructions of the partnership firm and at present, they are attempting to make new huge constructions on the property/land of the partnership firm. In fact, constructions and assets relating to the partnership firm M/s. Natraj Theatres were very huge and reasonable and bonafide market value of the said constructions comes to about Rupees Twelve crore Fifty lacs. Moreover, market value of the valuable articles and things of the ownership of the partnership firm relating to the theatre working and for management of it like machinery for running cinema and chairs, air conditioners and other facilities connected with theatre comes to about Rupees Five crores or more. All these things and articles were included in the construction of theatre. And though all these things and articles and theatre's constructions were in working condition and though summons of the Civil Court in Regular Civil Suit No.47/2011 were served to them, the defendants of this suit have done illegal acts and transactions in an unauthorized manner ignoring the provisions of law and committing breach of valid rules and hence, the plaintiffs are constrained to pray for the necessary relief/reliefs by filing the present suit.

(22) Moreover, Regular Civil Suit No.47/2011 has been filed by we the plaintiffs regarding the properties/ assets of the partnership firm namely M/s. Natraj Theatres against the concerned parties and its proceedings are pending, but because of the particulars declared and totally illegal and unauthorized activities thereafter at the site by the defendants, the present suit has been filed against the Page 13 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 defendants of this case, even though, the rights of we the plaintiffs are reserved for making additions and alterations in the suit as per need and/or to join the parties.

16.04.2015 each of Rs.25,00,000/- are mentioned towards amount of installments of so called final consideration in the so called sale deed. In this way, question of clearance of such cheques or to receive its payment by the sellers does not arise. In this way, before the full consideration is received, sale deed is registered on 09.04.2015 is the fact which cannot be believed in any circumstances. During the said period, hearing of the injunction application exh.5 was concluded and its judgment was awaited and in this way, Page 16 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 before the judgment is pronounced, the sale deed of the suit property is concocted illegally on 09.04.2015 only with a view to frustrate whatever the order being passed below exh.5 injunction application without publishing any public notice for sale and though advocate Shri Kriti S. Banatwala is appearing in the case for and on behalf of the defendants and though power of attorney regarding litigation of the suit property has been given by the defendants of this case to the husband of Rajeshri Gautam Patel from amongst the purchasers vide Mark-64/1, the sale deed which is executed without mentioning the suit in the said sale deed is redundant ab initio and illegal and unenforceable and has been concocted in collusion with the defendants. That the amount of the cheques as mentioned in that sale deed has not been exchanged. It is also not mentioned in the said sale deed that the sellers and the purchasers are income-tax payers and their Permanent Account Numbers are also mentioned and it is compulsory as per law to pay its capital gain tax and it is also mandatory to maintain books of accounts of whatever construction being made on the land in question and it is also mandatory to maintain bills and accounts of construction material, labour of the labourers, etc., but the defendants of this suit have only produced copy of the sale deed, Index and registration receipt in the Hon'ble Court and by doing so, they have suppressed material and important documents from the Hon'ble Court and the intention of the defendants is malafide behind doing so and a show is created that the construction on the suit land is being made by the partnership firm M/s. R.J.D. Centre Points, partnership firm and the reason behind it is Page 17 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 to save themselves from the application which is made in this case under Order-39 Rule-2(A) of the C.P.C . and to create such documentary evidences. In all the aforesaid circumstances, the said purchasers are not bonafide purchasers and they had and have information right from the beginning about the present suit and the appeal from orders filed against it and the orders passed therein from time to time, even though, sale deed has been executed during pendency of this suit without obtaining permission of the Hon'ble Court and, therefore, the same is barred by the rules of lis pendence and whatever the orders passed in this suit and appeal are binding to them. In this way, the said sale deed has been executed with a view to frustrate the decree which is going to be passed in this suit and hence, the same is null and void, redundant and illegal and unauthorized, unenforceable and without consideration ab initio and the defendant nos.5 to 7 do not get any possession in the suit property pursuant thereto or cannot be said to have been received and such sale deed is not binding to we the plaintiffs. In the alternative, we the plaintiffs have filed the present suit for cancellation of the sale deed dated 09.04.2015 registered in the office of the Sub Registrar of Navsari at Sr. No.2881 of Book No.1. The orders passed against the defendant nos.1 to 4 of this suit are also binding to the defendant nos.5 to 7 of this suit and the defendant nos.5 to 7 are responsible to enforce the same. Without prejudice to our such dispute, injunction application is given separately for obtaining injunction order against the defendant nos.5 to 7 of this suit with such clear understanding."

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 Cause of Action :

16. We should also look into the reliefs prayed for in the plaint :

(2-B) Be pleased to pass a decree in favour of we the plaintiffs and against the defendant nos.5 to 7 that whatever orders passed by this Hon'ble Court below injunction application exh.5 in this suit are binding to the defendant nos.5 to 7 of this suit and be pleased to pass a decree of declaration in favour of we the plaintiffs and against the defendant nos.5 to 7 that the defendants no.5 to 7 are not entitled either to transfer or assign the suit property or any part thereof to anybody else or to make its booking or to hand over its possession to anybody or to create any charge or lien thereon or to make any further construction in the said property or to do any act frustrating the rights of we the plaintiffs either directly or indirectly."

(3) Moreover, in consonance with relief no.1 and relief no.2, be pleased to grant permanent injunction in favour of we the plaintiffs and against the defendants restraining them not to make any construction or alterations in any manner in the property of the partnership firm M/s. Natraj Theatres or not to transfer the property or land to any third party or not to create the rights of any third party tenant on such property or land or not to do any act causing damage to the property or the land or not to made any type of alteration or addition in the site position of the property/land.

(3-A) Granting injunction order against the defendant nos.5 to 7 of this case in favour of we the plaintiffs and against Page 21 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 the defendants no.5 to 7 restraining them not to make any construction or alterations in any manner in the suit property or not to transfer the property or land to any third party or not to create the rights of any third party tenant on such property or land or not to do any act causing damage to the property or the land or not to made any type of alteration or addition in the site position of the property/land.

(4) Be pleased to pass necessary decree in favour of we the plaintiffs and against the defendants of this suit for recovering about Rupees Seventeen crore Fifty lacs from the defendants for damages caused to we the plaintiffs for totally destroying the constructions/assets of the partnership firm M/s. Natraj Theatres and misplacing the articles and things, etc. and for such acts of the defendants contrary to law.

(5) Be pleased to pass any other order as deemed just and fit by this Hon'ble Court in favour of we the plaintiffs.

(6) Be pleased to award cost of this suit."

17. We shall now look into some of the averments made in the application Exhibit 142 as regards the suit being time barred :

Hon'ble Gujarat High Court in its order passed in the matter of A.O. No.413/1999 filed by the partners of the firm against the order below exh.5 in Special Civil Suit No.19/1999 has made clear that the aforesaid deeds are null and void in law and it is also held that the plaintiff- Company is outsider and the plaintiff-Company was and is well acquainted with the same. Moreover, the concerned Hon'ble Court has also held that the agreements/deeds which are mentioned in Para No.10 of the plaint were all illegal and all the said agreements-deeds being illegal, unenforceable and contrary to the provisions of law have been cancelled. On the basis of the aforesaid so called agreements-deeds, the plaintiff-Company had filed Regular Civil Suit No.116/1998 in the Court of Hon'ble Civil Judge (Senior Division), Navsari against we the defendant nos.7 and 8 and after conclusion of the hearing, after recording the evidence and after hearing the arguments, the Hon'ble Court had dismissed the said suit and the appeal filed by the plaintiff-Company is pending, but on dissolution of the firm and as the sale of the property of the firm is made and as the business of the firm is closed since long and the existence of the property of the firm is not there, appeal has also become redundant and is not allowable now. And the plaintiff-Company had filed five different suits being Special Civil Suit Nos.49/1999 to 52/1999 against different partners for specific performance of the so called Page 23 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 agreements-deeds and the said five suits are dismissed and the plaintiff-Company had filed five appeals against the same in the Hon'ble District Court, out of which Regular Appeal No.61/2005 is abated and other appeals have also become abetable because of death of respondents Hiralal Dhansukhlal, Sakarlal Dhansukhlal, Dhirajlal Dhansukhlal, etc. or are treated to have been abated in law. General power of attorney stated in Para No.11 of the plaint is also cancelled and is not enforceable in law. Majority original partners who were donors of the power have expired and the plaintiff-Company is and was acquainted with all those facts right from the beginning, even though, we the defendant nos.7 and 8 had no any concern with such so called sale deeds, so called agreements-deeds or so called power of attorney. Reference of the facts mentioned in Para No.13 of the plaint is made above in the reply and hence it is not necessary to further clarify.

(15) We the defendant nos.7 and 8 have no any concern with the facts stated in Para No.7 of the plaint. We the defendant nos.7 and 8 have/had no any personal information relating to the past of the firm and hence, the same is not true and not admitted by we the defendants.

(16) We the defendant nos.7 and 8 have no any concern with the facts stated in Para No.8 of the plaint. We the defendant nos.7 and 8 have/had no any personal information relating to the personal matters of the partners and hence, the same is not true and not admitted by we the defendants.

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 (17) We the defendant nos.7 and 8 had/have no any personal information relating to the writings dated 20.03.1998 stated in Para No.12 of the plaint. Except that, we the defendant nos.7 and 8 had/have no any personal information relating to the writings dated 20.06.1997 stated in this paragraph. The particulars stated in this regard are not true and not admitted by we the defendants. We had/have no any personal information relating to the writings of the affidavit dated 10.10.1997 and it is already proved that all those are/were not true, bonafide and legal.

(18) It is stated in Para Nos.14 to 17 of the plaint regarding pleadings of the previous Special Civil Suit No.19/1999 which is not a part of the pleading and all such things are improper, unreasonable and unnecessary and is misplaced.

(19) In Para No.18 of the plaint, the plaintiff-Company has made a reference of previous Regular Civil Suit No.116/1998 filed against we the defendant nos.7 and 8 and in that regard, we the defendant nos.7 and 8 has made explanation-statement above in this reply and hence, further explanation is not required to be made. The said facts are also stated regarding the pleadings of the aforesaid suit which cannot be said to be a part of the pleading.

(20) In Para Nos.29 and 20 of the plaint, reference is made again of the previous Special Civil Suit No.19/ 1999 which is a part of the proceeding of the aforesaid suit which cannot be said to be pleading. Plaintiff-Company had made attempt Page 25 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 to be joined as a party in the matter of the aforesaid suit, but the Hon'ble Court had rejected the same and no any Revision/Appeal or Civil Application against the said order has been filed in the Hon'ble Gujarat High Court and all the disputes of the plaintiff-Company have come to an end. Matters arisen in the matter of Special Civil Suit No.19/1999 have been mentioned time and again in this paragraph. The aforesaid suit is disposed of. Hence, whatever the interim orders passed, revision, appeal, etc. are filed in the matter of Special Civil Suit No.19/1999 have been concluded with the disposal of the suit. It cannot be a part of the present suit.

(21) The facts stated in Para No.21 of the plaint are not correct and not admitted by us. All the particulars mentioned in this paragraph were the subject matter pf Special Civil Suit No.19/1999 and the same has been properly disposed of by the Court at the relevant time. The plaintiff-Company has no any concern with the same. All those facts are misplaced and unwarranted. It was a part of the proceeding and cannot be said to be pleading.

(22) That history of the aforesaid Special Civil Suit No.19 / 1999 has been reiterated in Para No.22 of the plaint and facts of proceeding are reiterated again. A reference of the facts except it is made in the previous reply and hence, further explanation is not required to be made.

(23) The facts of Para No.3 of the plaint are also not true and not admitted. The existence of the so called firm of the Page 26 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 plaintiff no.1 is not there at all and no any movable or immovable property of the firm is having any existence. Business of the firm is also not in existence and the firm has been dissolved. The original partners and the existing partners have settled their respective accounts. That, the property of the so called firm is not in actual possession of either the Ex-partners, or we the defendant nos.7 and 8. The suit of the plaintiff-Company is without any type of base and without any cause of action, beyond the period of limitation and is liable to be dismissed in all manner. Hence, all the facts of the said firm are concocted which are not true and not admitted.

(24) The plaintiff-Company has not produced its prima facie case right from title of the suit and Para No.1 to 23 of the plaint and not made any pleading. Reference of only Special Civil Suit No.19/1999 and other appeal/revision/ Special Civil Application arisen from the aforesaid suit has been mentioned. All such things have been disposed of along with the disposal of Special Civil Suit No.19/1999 and no any order remained in force and does not remain as enforceable or serviceable. The plaintiff-Company has produced the matter of Special Civil Suit No.19/1999 as replica which is not legal. The plaintiff-Company is not holding any right, interest, relation or share. The plaintiff- Company has not produced its own case and has made false statements and raised false demands and attempted to create false rights. Till the period of commencing the matter of Special Civil Suit No.19/1999 and its conclusion after 13 years, the plaintiff-Company have/had not filed Page 27 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 any suit or matters relating to its so call right, interest, relation or share either against the dissolved firm or deceased partners or the original existing partners. Therefore, the suit of the plaintiff-Company is hollow, illegal, false, frivolous and vexatious and hence, be pleased to dismiss the same.

(25) The suit of the plaintiff-Company is not as per the provisions of the Court Fee Act and hence also is liable to be dismissed.

(26) The facts stated in Para No.25 of the plaint are not true and not admitted by us. The fact that the business of the so called defendant no.1- partnership firm is running at the place at Navsari is not correct and not admitted by us, no any business of the dissolved firm is going on and is closed since long. Theatre of the business is also demolished and land is made open. Hence, as the so called firm is not in existence and business of the firm is not in existence and firm is not in existence, the Hon'ble Court has no jurisdiction to try the suit and hence also, the suit of the plaintiff is liable to be dismissed.

(27) Papers and letters are not admitted.

(28) That the plaintiff-Company is not entitled either to ask for or obtain the reliefs as prayed for in Para No.27 of the plaint and are or were not entitled in fact and, therefore, be pleased to dismiss the suit of the plaintiff with cost and as 19 false matters have cropped up against the defendant nos.7 and 8, exemplary cost be awarded."

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

18. We now look into the findings recorded by the court below in its impugned judgment and order :

19.4.2011 when the defendants in that civil suit have filed application exhibit 90. Therefore the facts of the present case and the facts of the case of Honourable Gujarat High Court are totally different and therefore the ratio laid down in the above judgement would not be helpful to the plaintiff.

This Court has gone through the above arguments and also gone through the record of the case more particularly the plaint and documents produced alongwith the plaint. It appears from the plaint that the plaintiff has filed the present suit for declaration to the effect that the registered sale deed dated 18/09/2016 and 23/3/2011 are illegal Page 30 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 and do not create any right, title or interest in the suit property. It also appears that the plaintiff has shown the reason of filing of the present suit, as the defendants in the civil suit no. 47/2011 appeared before the court and submitted the written statement Exhibit 86 wherein they have declared that they have sold the suit property to the present defendants no. 1 to 4 and therefore they have filed the present suit. On perusal of the documents produced alongwith the plaint, it appears that the plaintiff has neither produced the written statement submitted by the defendants in that civil suit no. 47/2011 nor stated on which date the written statement exh-86 of that suit was submitted. However the plaintiff has mentioned that the defendants in the Regular Civil Suit No. 47/2011 have filed written statement vide exhibit 86. The plaintiff has produced the list of documents alongwith the plaint in which, the xerox copy of application exhibit 90 filed by the defendants no.7 & 8 in the regular civil suit no. 47/2011 vide mark 3/48. On perusal of the mark 3/48, it appears that the defendants no. 7 and 8 in RCS No. 47/2011 have filed the application exhibit-90 under order 7 rule 11 (a) of the Code of Civil Procedure on 19/4/2011. The said application is exhibited vide Exh-90, whereas the written statement in that civil suit as per the say of the plaintiff, was filed vide Exh-86 i.e. before the date of filing of the application Exh-90 which is 19/4/2011. If we consider the period of limitation from 19/4/2011 (actually as per the say of the plaintiff the plaintiff came to know about the alleged sale deeds earlier to that application), the plaintiff has to file the present suit within the period of three years that is on or before Page 31 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 18/4/2014, whereas the plaintiff has filed the present suit only on 15/7/2014, which means the plaintiff has filed the present suit after a period of 3 years and 3 months from the filing of the written statement in the regular civil suit no. 47/2011. From the bare reading of the plaint as well as the documentary evidence produced alongwith the plaint, it is amply clear that the plaintiff has intentionally not mentioned date of filing of written statement in the plaint and it also appears that plaintiff has filed the present suit after a period of 3 years which is clearly barred by the provision of article 58 of the Limitation Act . Considering the ratio laid down in the case of Kanjibhai Bhagwanjibhai Patel vs. Nanduben Shamjibhai Sorathiya Through POA Dharmesh P. Trivedi, reported in 2013 (1) GLR 51, as well as ratio laid down by the Hon'ble Supreme Court in the case of N.V.Srinivasan Murthy vs. Mariyanmma (Dead) by Proposed L.Rs. , AIR 2005 SC 2897 and by the Hon'ble Gujarat High Court, in the cases of Bhupendrabhai Hasmukhbhai Dalwadi vs. Deceased Savitriben Ganumal Krishnani , 2010 (3) GLH 596, and also considering the averments in the plaint it is clearly found that the suit of the plaintiff is time barred and therefore, the plaint/suit is required to be rejected in exercise of powers under O.7, R.11(d) of the CPC . Hence the defendants have succeeded in proving that the suit of the plaintiff is barred by the provision of the Limitation Act . Hence, issue no. 1 is held in affirmative.

Considering the discussion as above and the considering the fact and circumstances of the present case as well as considering the provision of O.7 R.11 (a) and (d) of the code of civil procedure, the defendants have succeeded in proving Page 32 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 the fact that the suit of the plaintiff is beyond the period of limitation and also does not disclose the cause of action to file the present suit and therefore the suit of the plaintiff is required to be rejected in exercise of powers under O.7 R.11

(a) and (d) of the code of civil procedure and hence issue no.3 is also held in affirmative and following final Order is passed in the interest of justice."

19. Thus, the court below seems to have taken four dates into consideration for the purpose of rejecting the plaint on the ground that the suit is time-barred :

20. It seems that the court below picked up the date 19.4.2011 as the date from which the limitation period commenced for the appellant-plaintiff to institute the Special Civil Suit No.50 of 2014. Why the court below says so, because in the plaint, the appellant-plaintiff has stated that he came to know about the two sale deeds when the written-statement Exh.86 was filed in the Regular Civil Suit No.47 of 2011. Is it necessary that the appellant-plaintiff would come to know on the very first day of the filing of the written-statement Exh.86, i.e. on 19.4.2011. It is possible that the plaintiff-appellant might have come to know later in point of time. All that has been stated in the plaint is that the appellant-plaintiff came to know about the two sale deeds only after the written-statement Exh.86 was filed in the Regular Civil Suit No.47 of 2011. The court proceeds one step ahead. The court once again picks up the date 19.4.2011 because that is the date on which Exh.90, i.e. the application for rejection of the plaint of the Regular Civil Suit No.47 of 2011, was filed by the defendants. In such circumstances, the court below seems to have drawn an inference about the knowledge on the part of the plaintiff-appellant rather than focusing only on the averments made in the plaint.

21. Mr.R.R.Marshall, the learned senior counsel, assisted by Mr.Arpit Kapadia, the learned advocate appearing for the appellant-plaintiff, vehemently submitted that the impugned Page 34 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 judgement and order passed by the court below rejecting the plaint is erroneous and deserves to be quashed and set aside. Mr.Marshall would submit that the court below committed a serious error in holding that the suit instituted by his client is time barred in view of the period of limitation prescribed under Article 58 of the Limitation Act . The principal argument of Mr.Marshall is that having regard to the pleadings in the plaint and other materials on record the issue of limitation becomes a mixed question of law and fact and could not have been made a core basis for rejecting the plaint. Mr.Marshall also submitted that the plaint has been rejected also on the ground that the plaintiff has no cause of action to file the suit. According to Mr.Marshall, the court below has failed to maintain the 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 action. According to Mr.Marshall, from the averments in the plaint it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it.

22. Mr.Marshall pointed out that the court below has relied upon Exhibit 87 which is not even a part of the plaint relied upon by the plaintiff. Mr.Marshall further pointed out that the issue of limitation came to be decided by the court below relying on Exhibit 86, i.e. the written statement, filed in the suit for accounts. According to Mr.Marshall, relying on Exhibit 86, the court below could not have proceeded to impute deemed knowledge to the plaintiff as regards the two sale deeds which is the subject matter of challenge in the suit. According to Mr.Marshall, the order is not sustainable in law and deserves to be quashed and set aside.

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

23. In such circumstances referred to above , Mr.Marshall played that there being merit in his Appeal, the same be allowed and the impugned judgement and order be quashed and set aside.

24. Mr.Anshin Desai, the learned senior counsel, assisted by Mr.Mital Raval, the learned advocate appearing for the defendants-respondents, on the other hand, has vehemently opposed this Appeal submitting that no error, not to speak of any error of law, could be said to have been committed by the court below in rejecting the plaint on both the counts, i.e. the cause of action as well as the limitation.

25. Mr.Desai laid much stress on the suit being time barred. Mr.Desai seeks to rely upon Exhibit 86, i.e. the written statement, filed in the suit for accounts. According to Mr.Desai, Exhibit 86 itself is very clear that the plaintiff had the knowledge about the two sale deeds and, therefore, the suit ought to have been filed within three years from the date of such knowledge. Mr.Desai would argue that if the court below after due consideration of Exhibit 86 thought fit to reject the plaint, then no error could be said to have been committed by the courts below. Mr.Desai further submitted that the entire cause of action as pleaded in the plaint could be said to be illusive. According to Mr.Desai, many dates have been concealed deliberately so as to bring the suit within the period of limitation. Mr.Desai has placed reliance on the following case-law:

26. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the court below committed any error in passing the impugned order.

27. Order 7 Rule 11 of the CPC reads as follows :

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers 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 from correcting the valuation or supplying the requisite stamp-papers, 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."

28. The controversy between the parties seems to be confined to Order 7, Rule 11(d), as the period of limitation has been used as a propulsion by the learned counsel appearing for the defendants in their quest for getting the plaint rejected.

29. To consider an application for rejection of the plaint under Order 7, Rule 11 CPC especially under clause (d), the averments made in the plaint are only to be looked in. To elaborate further, we may refer to and rely upon the case of Popat and Kotecha Page 38 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 Property vs. State Bank of India Staff Association , reported in (2005) 7 SCC 510, wherein it has been held as follows:

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

30. The aforesaid judgment was relied upon in the case of Hardesh Ores (P) Ltd. vs. Hede and Company , reported in (2007) 5 SCC 614, wherein it has was held as follows:

31. Mr.Marshall, the learned senior counsel appearing for the plaintiff, while making good his submission that the question whether the plaint was barred by any law and can only be decided after the evidences are led, has relied upon the case of Pawan Kumar vs. Babulal since deceased through Legal Representative and others reported in (2019) 4 SCC 367. It has been held therein as follows:

32. We are of the view that the plaint could not have been rejected on the ground that the suit is time-barred. The plaintiff, in no uncertain terms, has pleaded in the plaint that he came to know about the execution of the sale deeds only when the defendants nos.7 and 8 filed their written-statement Exh.86 in the Regular Civil Suit No.47 of 2011. The court below has gone to the extent of ascertaining the veracity of such statement made in the plaint. The court below imputes bad faith to the plaintiff saying that the plaintiff intentionally has not stated the date of filing of the said writ-statement. The entire approach of the court below, in our view, is not correct. In so far as the rejection of the plaint on the ground of limitation is concerned, it is needless to emphasize that limitation is a mixed question of fact and law. When it is the specific case of the plaintiff that he came to know about the sale deeds at the time when the written statement came to be filed in the civil suit referred to above , such averments may or may not be true, but if the plaintiff succeeds in establishing the above averments, the issue of limitation cannot be put against the plaintiff.

33. The averment made in the plaint appears to be candid and does not intend to camouflage the intention of the plaintiff to Page 42 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 circumvent Order 7 Rule 11(d) CPC . The averment made in the plaint on close introspection does not indicate a bogus or a frivolous litigation or an illusory drafting to obviate the obstacle of Order 7 Rule 11(d) CPC . The application filed under Order 7 Rule 11 CPC appears to have been done as a matter of course as the averments made in the same suggest.

34. When limitation is a pure question of law and from the pleadings itself it becomes apparent that a suit is barred by limitation, then, of course, it is the duty of the court to decide limitation at the outset even in the absence of a plea. However, in cases like the one on hand, where the question of limitation is a mixed question of fact and law and the suit does not appear to be barred by limitation on the face of it, then the facts necessary to prove limitation must be pleaded, an issue raised and then proved. (see Narne Rama Murthy vs. Ravula Somasundaram , 2005 (6) SCC 614)

35. Time and again, this Court has, in many orders, explained stating that a plea of limitation cannot be decided as an abstract principle of law divorced from the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question, whether the words 'barred by law' occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation, has been considered by the Supreme Court in the case of Balasaria Construction Pvt. Ltd. vs. Hanuman Seva Trust and others, decided on 8th October 2005), held as under :

36. What is a pure question of fact or of law or of a mixed question of law and fact and how the court should approach and decide them have been set at rest by the Supreme Court in Sree Meenakshi Mills' case [1957] 31 ITR 28. On all these aspects, Venkatarama Ayyar J., speaking for the court, has expressed thus (at p. 39) :

37. In between the domains occupied respectively by question of fact and of law, there is a large area in which both these question run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as the mixed question of law and fact. These question involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site, Page 45 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive ? Is it as of right or permissive in character ? Thus, for deciding whether the defendant has acquired title by adverse possession, the court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law.

38. This Court, while deciding the Appeal from Order filed by the other side against the grant of injunction below Exh.5, observed in no uncertain terms that the question of limitation in the case on hand is one of facts and would be decided only during the trial. It is very disturbing to note that the court below just ignored such findings recorded by this Court.

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39. It has been the case of the plaintiff from day one that the existence of the sale deeds came to his knowledge only when the defendants filed their written statement in the Regular Civil Suit No.47 of 2011. The question of deemed knowledge of a registered document was also considered by this Court while deciding the Appeal from Order referred to above.

40. The Issue of limitation may be addressed by us from a different perspective. So far as the law of limitation is concerned, it does not bar the institution of the suit, it merely bars the remedy. As a piece of substantive law, it may result in extinguishment of the right if the action is not commenced within a particular time, or as a piece of procedural law, it may merely bar the claim. Where a party to the suit sets up the plea of limitation, the court is required to consider (a) the cause of action in the suit; (b) when the cause of action commenced; and

(c) the result of non-action by the plaintiff. In these premises, the question of limitation cannot be called a pure question of law, it would rather be mixed question of law and fact.

41. We also take notice of the fact that the plaint has also been rejected on the ground that the plaintiff has no cause of action to file the suit. There appears to be a serious misconception of law in the mind of the courts below that once the suit is found to be time-barred, the cause of action automatically becomes illusive. In many orders which came up before us in appeals such line of reasoning could be noticed. In the case on hand, on a fair reading of the application Exh.142 filed by the defendants under Order 7, Rule 11 CPC , it is clear that the case of the defendants Page 47 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 is that the plaintiff has 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 court below has also not recorded any specific finding to this effect. From the discussion in the order, it appears that the court below has failed to maintain 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 action. No specific reason or ground has been stated in the impugned order in support of the finding that the plaint is to be rejected under Order 7, Rule 11(a) CPC . From the averments in the plaint, it is clear that the plaintiff has pleaded a cause of action for filing the suit seeking the reliefs stated in it. That is not to say that the plaintiff has a cause of action to file the suit for the reliefs sought for. That question is to be determined on the basis of the materials (other than the plaint) which may be produced by the parties at an appropriate stage in the suit. For the limited purpose of determining the question whether the plaint is to be rejected under Order 7, Rule 11(a) CPC or not, the averments in the plaint are only to be looked into.

42. We also take notice of the fact that the court below has discussed Section 19(1)(g) of the Partnership Act, 1932, and Section 23 of the Contract Act. How the court could have gone into all such issues while considering the plea for rejection of the plaint.

43. In the overall view of the matter, we are convinced that the court below committed a serious error in rejecting the plaint.

C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021

44. We sum up our final conclusions :

The clause (d) of Rule 11 of the Order 7 of the CPC would apply to the cases when it would reveal from the contents of the plaint that the suit is barred. In other words, in order to enable the court to arrive at the conclusion that the suit filed by plaintiff is barred, the pleadings in the plaint should apparently disclose the facts revealing the bar to the suit instituted by the plaintiff. The conclusion under clause (d) regarding the bar to the suit cannot be arrived at on the basis of materials extraneous to the pleadings in the plaint. The jurisdiction of the court to take action under Order 7, Rule 11(d) of the CPC can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, and not otherwise. Of course, the jurisdiction can be exercised at any stage of the suit, however, the decision under Order 7, Rule 11(d) of the CPC has to be on the basis of the pleadings in the plaint.

(2) A plaint can be rejected under the said provision of law only if the plaint on the face of it discloses the same to be barred by any law in force, and not by referring to the materials which are sought to be placed on record by the defendant in answer to the plaint. In case the defendant Page 49 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 requires to refer to any material other than the plaint, certainly such an exercise is permissible by way of leading evidence after framing issues and satisfying the court about the non-maintainability of the suit. But the same exercise cannot be done under Order 7, Rule 11(d) of the CPC . On account of any material being available with the defendant to prove that the suit being not maintainable, the same cannot be a ground to non-suit the plaintiff by exercise of power under Order 7, Rule 11(d) of the CPC . In order to get the necessary relief on the basis of such materials, the defendant will have to lead necessary evidence by producing such materials on record in accordance with the provisions of law and only thereupon the court can take appropriate decision as regards the objection sought to be raised by the defendant regarding non-maintainability of the suit.

45. In the result, this Appeal succeeds and is hereby allowed. The impugned order passed by the 4th Additional Senior Civil Judge, Navsari, dated 21st March 2020 below Exhibit 142 in the Special Civil Suit No.50 of 2014 is hereby quashed and set-aside. The plaint stands restored to the file of the trial court to its original number for being proceeded in accordance with law. It goes without saying that the order of injunction passed on application Exh.5 also stands restored. All contentions available to both the parties are kept open including the issue of limitation to be decided along with the other issues on the basis of the plea taken in the written statement and the evidence produced by the parties in that behalf uninfluenced by the observations made in Page 50 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021 C/FA/1774/2020 CAV JUDGMENT DATED: 28/09/2021 the present judgment on factual matters. Consequently, the connected Civil Application also stands disposed of.

(J. B. PARDIWALA, J.) (VAIBHAVI D. NANAVATI, J.) /MOINUDDIN Page 51 of 51 Downloaded on : Wed Sep 29 02:15:04 IST 2021