Gujarat High Court
Dhulaji Somaji Thakor vs Gordhanbhai Hathibhai Patel on 10 June, 2025
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C/CRA/271/2022 CAV JUDGMENT DATED: 10/06/2025
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Reserved On : 22/04/2025
Pronounced On : 10/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 271 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
√
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DHULAJI SOMAJI THAKOR & ORS.
Versus
GORDHANBHAI HATHIBHAI PATEL & ANR.
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Appearance:
MR. R.D.KINARIWALA(6146) for the Applicant(s) No. 1,2,3
ADITYA D DAVDA(8354) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
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TABLE OF CONTENTS
TABLE OF CONTENTS………………………………………………….2
FACTUAL MATRIX………………………………………………………3
SUBMISSIONS OF THE PETITIONER – DEFENDANT…………….5
SUBMISSIONS OF THE RESPONDENT – PLAINTIFF……………12
ANALYSIS………………………………………………………………16
PERMISSIBILITY OF ADDITIONAL GROUNDS BEING RAISED BEFORE THE
REVISIONARY COURT UNDER SECTION 115 OF THE CPC……………………..17
DEATH OF DEFENDANT NOS. 2 AND 3 BEFORE INSTITUTION OF THE SUIT….24
PLAINT BARRED BY SECTION 43 OF THE TENANCY ACT……………………….31
NO CAUSE OF ACTION…………………………………………………………….. 38
LIMITATION ACT…………………………………………………………………….39
CONCLUSION………………………………………………………….53
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1. Rule. Returnable forthwith.
2. The present Civil Revision Application has been filed challenging the Order
dated 03.01.2022 passed below Exh.17 by 7th Additional Senior Civil Judge,
Ahmedabad Rural in Special Civil Suit No.592 of 2018 whereby the application
filed by the Defendant under the provisions of Order VII Rule 11 of Code of
Civil Procedure, 1908 has been rejected. With the consent of the parties, the
present matter is taken up for final hearing.
FACTUAL MATRIX
3. The brief facts arising in the present suit are that the Plaintiff filed the present
suit on the ground that in view of the Agreement that has been entered into
between the parties dated 17.03.1995, the Defendant be directed to execute a
registered sale-deed and that the Defendants do not have any right to cancel the
said agreement to sale.
4. In the Plaint, the Plaintiffs have pleaded that the suit property is a new tenure
land and as per the said agreement dated 17.03.1995 the sale price has been
decided as Rs. 551/- per sq. yard and it is the case of the Plaintiff that an amount
of Rs. 10,00,000/- (Rupees Ten Lakhs Only) was to be paid within period of
seven days from the date of agreement to sale dated 17.03.1995 The Plaintiff has
also stated that an amount of Rs. 4 lacs was already paid by the Plaintiff towards
the sale consideration.
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5. It is the case of the Plaintiff that as the property was of new tenure land, the
condition agreed to between the parties was that the Defendant shall file
Application before the appropriate authorities to convert the suit land into old
tenure land and the sale-deed has to be executed after the title clearance
certificate is received with respect to the said property and only thereafter the
sale consideration has to be paid by the Plaintiffs. The Plaintiff in the plaint has
also stated that thereafter an amount of Rs.1 Lakh has been paid by the Plaintiff
and therefore a total amount of Rs.5 lacs has been paid by the Plaintiff to the
Defendant for the sale consideration.
6. It is the case of the Plaintiff in the Plaint that thereafter time and again the
Plaintiff had informed the Defendant to take the remaining amount of sale
consideration and take permission from the appropriate authorities and execute a
sale-deed in favour of the Plaintiff. But the Defendants are not accepting the
remaining amount of sale consideration nor are executing a sale-deed with
respect to the suit property and the Defendants are giving false and evasive
assurances and promises.
7. It is the case of the Plaintiff in the Plaint that on 20.03.2014 the Defendant
issued a public notice for getting title clearance certificate of the suit property
and on 22.03.2014 the Plaintiffs objected to the said title clearance certificate.
Thereafter, the Plaintiffs have stated in the plaint that after issuance of title
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clearance certificate notice, the Defendant assured of executing sale-deed in
favour of the Plaintiffs.
8. Hence, the Plaintiffs have filed the suit on 17.10.2018 seeking specific
performance of the agreement to sale dated 17.03.1995 on the ground that as the
Plaintiff had issued a notice dated 03.08.2018 for specific performance of the
agreement dated 17.03.1995 and, therefore, cause of action has arisen for the
Plaintiff to file the present suit on 03.08.2018.
9. The Defendant appeared in the said suit and filed application vide Exhibit 17
under the provisions of Order VII Rule 11 of the CPC on the ground that the suit
is barred by limitation and that the agreement that has been entered into between
the parties dated 17.03.1995 was an agreement to enter into an agreement to sell
and the same was not an agreement to execute sale deed in favour of Plaintiff.
10. After hearing both the parties, the trial Court by an order dated 03.01.2022
rejected the said application. Hence, the present Civil Revision Application.
SUBMISSIONS OF THE PETITIONER – DEFENDANT
11. Learned Senior Advocate Mr. Mehul Shah has mainly argued that the suit has
been filed by the Plaintiff is for specific performance of an Agreement dated
17.03.1995. This suit has been filed by the Plaintiff on 17.10.2018 on the
grounds which, from the plain reading of the Plaint and document annexed with
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was barred on the ground of limitation. Further, the agreement that was entered
into between the parties did not state that a sale deed has to be executed in
favour of the Plaintiff and, therefore, the suit for execution of the sale deed on
the basis of agreement dated 17.03.1995 shall not lie as there was no cause of
action that has arisen in favour of the Plaintiff to seek specific performance of
the agreement.
12. Learned Senior Advocate Mr. Shah has also argued that there was a condition
in the Agreement dated 17.03.1995 which clearly states that the period of the
greement was nine months only. Moreover, it has been argued that in the plaint
the Plaintiff has made precise averments that on 20.03.2014 the Defendant gave
a public notice for the purpose of selling the property and title clearance and
Plaintiff objected to the same by filing objection to the said notice seeking title
clearance on 22.03.2014. Therefore, it has been argued by learned advocate for
the Defendant that the Plaintiffs were knowing that the Defendants are not
performing their part of the contract and are trying to sell the suit property and
though knowing the said fact the suit that has been filed by the Plaintiff is filed
on 17.10.2018.
13. Learned Senior Advocate has also argued that though the issue with respect to
the property being new tenure land and an agreement with respect to new tenure
land is hit by Section 43 of The Gujarat Tenancy and Agricultural Lands
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(Vidarbha Region and Kutch) Area Act, 1958 (‘the Tenancy Act‘ for short) and
the said fact is an admitted fact even as per the pleadings filed by the Plaintiff
and on the plain reading of the agreement dated 17.03.1995 and though the said
ground that the Agreement and consequently, the plaint is barred in view of
Section 43 of the Tenancy Act, the same can be taken as powers under the
revision jurisdiction are wide enough.
14. Moreover, it has also been argued that even otherwise the said point is point of
law and from the plain reading of the plaint and documentary evidence, the
Court has to ascertain whether the plaint is barred by law and, therefore, even if
the said ground is not taken while filing an application under Order VII Rule 11
of the CPC the same can be decided by this Court while deciding the Revision
Application.
15. The Defendant has also taken a ground that on the date of filing the suit, out of
the three Defendants, two Defendants have already died and, therefore, as the
suit having been filed against dead persons was not maintainable as per law and
the trial Court could not have rejected the Application filed by the Defendant
under the provisions of Order VII Rule 11 of the CPC.
16. It has been argued that in view of the fact that out of three Defendants, two
Defendants have expired, the Court could not have further proceeded with the
matter as specific performance of the agreement dated 17.03.1995 could not
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have been executed in view of the death of two Defendants. It has been argued
by the learned Senior Advocate that the suit that has been filed is filed against
dead persons and, therefore, there cannot be part performance of the agreement
and as two of the Defendants have already expired before filing the suit and that
the suit has been filed against dead persons, only one Defendant cannot execute
specific performance of the agreement dated 17.03.1995 and in that view of the
matter, it has been argued that there was no cause of action has arisen for the
Plaintiff to file the suit against two dead Defendants and the sole Defendant
alive cannot execute a sale-deed of the entire property and, therefore also it has
been argued that the plaint is required to be rejected.
17. The learned Senior Advocate for the Defendant has also argued that under
Section 43 of the Tenancy Act the agreement being void a specific performance
of void agreement could not be entertained and the same is required to be
rejected as being barred by law.
18. The learned Senior Advocate for the Defendant has also argued that on the
point of limitation the same has started from 17.03.1995 wherein the time limit
in the agreement was fixed for nine months. Therefore, by virtue of the said
agreement, the sale-deed had to be executed on or before 17.12.1995 i.e. after
the period of nine months from the date of signing the agreement dated
17.03.1995 and in the said agreement there is a discussion of filling up Form
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No. 1 before the competent authority and Additional Collector and, therefore,
the said term in the agreement was with respect to the provisions of Urban Land
Ceiling Act and the Urban Land Ceiling Act was repealed in the year 1999.
Therefore, there is no question of seeking any permission under the Urban Land
Ceiling Act.
19. Therefore, the starting point of limitation would be 17.12.1995 i.e. nine months
from the date of signing the agreement. Thereafter also a public notice was
issued on 20.03.2014 by the Defendant for title clearance and objections with
respect to the suit property and a reply / objection to that effect was sent by the
Plaintiff on 22.03.2014. Therefore, at least on 20.03.2014 the Plaintiffs were
aware that the Defendants are not inclined to execute a sale-deed in favour of the
Plaintiffs and, therefore, the suit having been filed after period of three years
from the first date of occurrence i.e. 17.12.1995. The suit is hopelessly time
barred. Moreover, it has also been argued that the date of payment of the total
sale consideration is also specifically stated in the agreement i.e. the total
amount of Rs.10,00,000/- has to be paid by the Plaintiffs within a period of
seven days from the date of execution of the agreement dated 17.03.1995 and
the fact remains that the said amount has not been paid by the Plaintiffs and
therefore also the period of limitation to file the present suit has also arisen from
24.03.1995 i.e. seven days from the date of execution of the agreement dated
17.03.1995.
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20. It has been argued by learned Senior Advocate for the Defendants that even in
the plaint the Plaintiff has specifically stated that an agreement has been entered
into between the Plaintiffs and the Defendants on 17.03.1995 and the Defendant
is seeking specific performance of the said agreement to sale. Therefore, the
terms and conditions of the agreement to sale will be of much importance and
the same has to be considered which specifically states that the amount of
Rs.10,00,000/- had to be paid within seven days from the execution of the
agreement. The said agreement also states that the period of the said agreement
was nine months from 17.03.1995. The said agreement also states about the
property being of new tenure land and in view of the said fact it has been argued
that the trial Court could not have rejected the application filed under the
provisions of Order VII Rule 11 of the CPC.
21. Learned Senior Advocate for the Defendant has relied on the decision of Full
Court decision of this Court rendered in the case of Decd Shaikh Ismailbhai
Hushainbhai Through Lh Versus Vankar Ambalal Dhanabhai reported in 2024
(0) AIJEL-HC 247772.
22. The following judgments are also relied upon by the learned Senior Advocate
for the Defendant.
i. Narayanamma vs. Sri Govindappa, 2019 (0) AIJEL – SC 64905 :2019 (19)
SCC 42;
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iii. Rajendra Bajora vs. Hemant Kumar Jalan, 2021 (0) AIJEL SC 67716 :
2022 (12) SCC 641;
iv. Canara Bank vs. P. Selathal; 2020 (0) AIJEL SC 65828 : 2020 (13) SCC
143;
v. Raghwendra Sharan Singh vs. Ram Prasanna Singh; 2019 (0) AIJEL – SC
63798 :2020 (16) SCC 601;
vi. Asha John Divianathan vs. Vikram Malhotra, 2021 (0) AIJEL – SC 67048 :
2021 (19) SCC 629;
vii. K. Akbar Ali vs. Umar Khan; 2021 (0) AIJEL – SC 67061 : 2021 (14) SCC
51;
viii. Hira Lal Patni vs. Sri Kali Nath; 1961 SCC OnLine SC 42;
ix. Van Oil Petroleum Limited vs. M.V.Denali, 2018 (0) AIJEL HC 239093 :
2018(2) GLH 431;
x. Emrald Co.operative Housing Society Limited vs. Gulamkadar s/o. Gulam
Husain Abdulkadar and Bain Shakarbu Decd. 2019 (0) AIJEL – HC 240810
: 2019 (2) GLH 559;
xi. Decd Shaikh Ismailbhai Husainbhai Through Lh vs. Vankar Dahanabhai;
Full Court decision of this Court rendered in Second Appeal No.208 of
2021 dated 12.01.2024;
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xii. Satguru Sharan Shrivastava vs. Dwarka Prasad Mathur (Deced.) Through
Lrs. And Others, (1996) 10 SCC 293;
xiii. Badni (Dead) By Lrs. and Ors. vs. Siri Chand (Dead) by Lrs. and Ors.,
(1999) 2 SCC 448;
xiv. Municipal Council Mandasur vs. Fakirchand and another, (1997) 3 SCC
500;
xv. Harbans Singh and Ors. vs. San Hari Singh and Ors., (2009) 2 SCC 526;
xvi. Venigalla Koteswaramma vs. Malampati Suryamba and Ors., (2021) 4 SCC
246;
xvii. Sri Gangai Vinayagar Temple and another vs. Meenakshi Ammal and Ors. ,
(2015) 3 SCC 624 and
xviii. Bharatbhai Devashibhai Ukani vs. Vinaben Babaji and ors. Division
Bench of this Court in First Appeal No.4023 of 2023 dated 26.02.2024
SUBMISSIONS OF THE RESPONDENT – PLAINTIFF
23. Per Contra, Learned Senior Advocate Mr. Percy Kavina for the Plaintiff has
mainly argued that while deciding the application under the provisions of Order
VII Rule 11 of the CPC the Court will only have to look at the Plaint and
documents annexed with the plaint and from the bare reading of the plaint it
cannot be said that the plaint is barred by law. Ld. Senior Advocate Mr. Kavina
has argued that the suit that has been filed is for specific performance of the
contract dated 17.03.1995 and as per Article 54 of the Limitation Act, 1963, the
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notice of refusal of performance of the agreement first came to the knowledge of
the Plaintiff when the Plaintiff issued a notice dated 03.08.2018 whereby the
Plaintiff sought specific performance of the agreement and, therefore, the suit
that has been filed by the Plaintiff is within the period of limitation.
24. It has been argued by Ld. Senior Advocate for the Plaintiff that in the Plaint it
has specifically been stated that the Plaintiff was always ready and willing to
perform his part of the contract and pay the remaining amount of sale
consideration but it is the Defendant who used to give false and evasive
assurance and promise and has never refused specific performance of the
agreement. Therefore, the question of filing suit for specific performance would
not arise till 03.08.2018 when the notice was issued by the Plaintiff for specific
performance of the agreement.
25. It has also been argued that though a public notice for title clearance certificate
was issued by Defendant on 20.03.2014 the same was replied by the Plaintiff on
22.03.2014 and it is the case of the Plaintiff that thereafter the Plaintiff and
Defendant no.1 met and in the said meeting the Defendant No. 1 had agreed that
Defendant no.1 shall comply with the terms and conditions of the agreement at
the earliest and that Defendants had agreed that they will not commit any act
which will cause prejudice to the Plaintiff’s right and interest in the suit
property. The Plaintiffs were also assured by Defendant No. 1 that the Defendant
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no.1 shall get title clearance certificate at the earliest and therefore cause of
action to file suit arose only on 03.08.2018 when notice was issued by the
Plaintiff. Therefore it has been argued that the suit that has been filed is within
the period of limitation and the fact that the suit is within period of limitation or
not is mixed question of law and fact and cannot be decided without leading
evidence and, therefore, the trial Court has rightly rejected the application filed
under Order VII Rule 11 of the CPC.
26. With respect to the fact that the suit is barred on the ground that the suit has
been filed against two Defendants i.e. Defendant nos.2 and 3 who have died
before filing suit, it has been argued that the right of the Plaintiffs survives as the
suit that has been filed is for specific performance of the agreement dated
17.03.1995 against three Defendants and the Plaintiffs have right to continue
with their remedy against Defendant No. 1 who is the signatory to the said
agreement dated 17.03.1995. It has also been argued that the said right against
Defendant No. 1 being independent right, it cannot be said that the suit abates as
a whole. It has been argued by learned Senior Advocate for the Plaintiff that
there is no legal impediment in impleading the legal representatives of
Defendant nos.2 and 3 who have expired prior to filing of the suit and the
Plaintiffs were not aware about the death of Defendant nos. 2 and 3 at the time
of institution of suit and if the said fact was in knowledge of the Plaintiff, he
would have filed the suit at the first instance against the heirs and legal
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representatives of Defendant nos. 2 and 3 and, therefore, it cannot be said that as
the suit has been filed against Defendant nos.2 and 3 who have died before filing
suit, the suit is required to be rejected under the provisions of Order VII Rule 11
of the CPC. Therefore, it is argued that the trial Court has rightly rejected the
said application. Moreover, it has also been argued that the said contention has
also not been raised in the application filed under Order VII Rule 11 of the CPC
and, therefore, cannot be taken in the present Revision Application.
27. With respect to the provisions of Section 43 of ‘the Tenancy Act‘, it is argued
that the same is a point of fact and the same cannot be decided while deciding
application under Order VII Rule 11 of the CPC. Moreover, the said ground is
also not taken in the application filed under Order VII Rule 11 of the CPC and,
therefore, it has been argued that the said point that the plaint is barred under the
provisions of Section 43 of ‘the Tenancy Act‘ cannot be taken in the present
Revision Application. Learned Senior Advocate for the Plaintiffs has relied on
the judgment of this Court in First Appeal No.1521 of 2012 in the case of Trust
of Shri Laxminarayan Temple and its Subordinate Temples vs.
Ajendraprasadji Narendraprasadji Pande and others reported in 2013 (0)
AIJEL 229409 wherein the issue was whether the plaint is barred under section
50 of the Bombay Public Trust Act for want of permission of the Charity
Commissioner and the Court held that under the provisions of Order VI Rule 6
of the Code if nothing is stated in the plaint by the Plaintiff, the condition
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precedent for institution of the suit should be implied in the pleading. In other
words, a Plaintiff is not required to specifically plead that he has complied with
the condition precedent for filing of such suit since law specifically demands
that such facts should be implied in the pleadings and it is for the other side to
raise such plea in his pleadings and, therefore, while deciding an application
under Order VII Rule 11 of the CPC, the defense cannot be looked into.
Therefore also the Application has rightly been rejected by the trial Court and in
view of the said fact it has been argued that the present Revision Application is
required to be rejected.
ANALYSIS
28. Having heard learned Senior Advocates for respective parties the matter for
consideration in present revision is that the application under the provisions of
Order VII Rule 11 of CPC was filed on two grounds; (i) The plaint is time
barred and (ii) there is no cause of action for the Plaintiff to file the suit as the
agreement dated 17.03.1995 is only an agreement to enter into an agreement to
sale and not an agreement to execute the sale deed.
29. However, in the present Revision Application the Defendant has raised four
grounds to reject the plaint i.e. (i) Plaint is barred by law of limitation, (ii) Plaint
is barred as it does not disclose cause of action (the agreement dated 17.03.1995
is only an agreement to enter into agreement to sale and not to execute a sale-
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deed. Additionally, following grounds are agitated before this Court for the first
time: (iii) Plaint is barred under the provisions of Section 43 of the Tenancy Act
and (iv) in view of suit being filed against dead persons i.e. Defendant nos. 2
and 3 the Plaint is required to be rejected.
30. Therefore, before moving on to the grounds agitated for rejection of the Plaint,
I will have to consider the legal position on whether a Court exercising
revisionary powers under Section 115 of the CPC can consider grounds which
have not been raised before the Trial Court in an Application under Order VII
Rule 11.
Permissibility of Additional grounds being raised before the Revisionary
Court under Section 115 of the CPC
31. Ld. Senior Advocate for the Respondents – Plaintiffs has argued that the
permissibility of taking additional grounds (which have not been taken in the
Application) will have to be considered prior to deciding the additional grounds.
32. The argument regarding non-permissibility of a new plea in revisionary
jurisdiction appears to be attractive at first blush. Indeed, it is also true for
certain cases (see: Madan Mohan Kotal v. Gobinda Kotal and Anr., (2002) 9
SCC 457). However, the position of law seems to be different in case of an
Application under Order VII Rule 11.
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33. This is primarily for two reasons. First, in a case under Order VII Rule 11,
even an Application from the Defendant is not required. Court can even suo
motu exercise such power. This flows from the mandatory language of Order VII
Rule 11, where the expression used is ‘shall reject’. Therefore, there is no
requirement that a Defendant must apply before a Court seeking rejection of
Plaint. The fact that in most cases it arises out of such an Application by the
Defendant is irrelevant.
34. Therefore, when the Court is enjoined with the duty to examine a Plaint thor-
oughly and test it through the rigours of Order VII Rule 11, then naturally as a
corollary, it cannot be made so disadvantageous for the Court to not exercise its
jurisdiction merely because the Defendant does not raise that some ground. In
Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1,
the Hon’ble Apex Court held as follows:
94.3. Order 7 Rule 11 does not provide that the court is to
discharge its duty of rejecting the plaint only on an application.
Order 7 Rule 11 is, in fact, silent about any such requirement. Since
summon is to be issued in a duly instituted suit, in a case where the
plaint is barred under Order 7 Rule 11(d), the stage begins at that
time when the court can reject the plaint under Order 7 Rule 11. No
doubt it would take a clear case where the court is satisfied. The
Court has to hear the plaintiff before it invokes its power besides
giving reasons under Order 7 Rule 12. In a clear case, where on
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allegations in the suit, it is found that the suit is barred by any
law, as would be the case, where the plaintiff in a suit under the Act
does not plead circumstances to take his case out of the
requirement of Section 12-A, the plaint should be rejected without
issuing summons. Undoubtedly, on issuing summons it will be
always open to the defendant to make an application as well under
Order 7 Rule 11. In other words, the power under Order 7 Rule 11
is available to the court to be exercised suo motu. (See in this
regard, the judgment of this Court in Madiraju Venkata Ramana
Raju [Madiraju Venkata Ramana Raju v. Peddireddigari
Ramachandra Reddy, (2018) 14 SCC 1] .)
35. This question can be answered in a simple manner. For instance, the Court on a
bare perusal of the Plaint and the documents therewith, comes to the conclusion
that, the Plaint is barred by some law. Is the Court then helpless and must
proceed with the entire ordeal of trial, merely because the Defendant does not
make an Application under Order VII Rule 11? In my opinion, the answer is a
categorical no. To say that the Court cannot act or rule beyond the grounds
which have been raised by the Defendant in an Order VII Rule 11 Application is
akin to saying that the Court must sit as a mute umpire in a contested match.
This is not (and cannot be) in my opinion, the position of law.
36. The object of Order VII Rule 11 has to be considered at this juncture. It is a
special power that has been vested in the Court to curb the abuse of process and
to see that untenable proceedings must not waste judicial time and public
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money. It is the duty of the Court itself to examine the tenability of such kind of
litigation and, therefore, even if the Court finds that the plaint is manifestly
vexatious and meritless, the Court has no other option but to reject the plaint
under the provisions of Order VII Rule 11 of the CPC.
37. Second, there is no doubt that jurisdiction under Section 115 of the CPC must
be exercised to correct jurisdictional errors. However, to appreciate what has
been the jurisdiction error committed by the Ld. Trial Court, it becomes
important to examine the source of jurisdiction vested with the Trial Court. In
the present case, that source emanates from Order VII Rule 11.
38. Hence, naturally, the Ld. Trial Court had the jurisdiction to reject the Plaint if it
found the Plaint was barred by some law. Whether or not the Defendant has
raised that ground in the pleading is secondary. It is well settled law that Plaint
as a whole must be gone through while deciding an Application under Order VII
Rule 11. Therefore, having gone through the Plaint in whole, if the Court sees
that the Plaint is barred by some law, irrespective of what the Defendant has to
say on that issue, the Court has the jurisdiction to reject the Plaint.
39. Therefore, the Ld. Trial Court had ample jurisdiction to reject the Plaint even if
a ground was not raised in Application under Order VII Rule 11. As a corollary,
if the Ld. Trial Court ought to have rejected the Plaint and has not done the
same, it will amount to failure of exercising jurisdiction vested in it. Hence, such
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an error is permissible to be cured under Section 115 of the CPC. Therefore, on
this count also, it is permissible to reject the Plaint on grounds, even though they
may not have been agitated before the Trial Court.
40. This Court in Rajhans Infracon (India) Pvt. Ltd. v. Santosh Rameshbhai
Rathod, 2019 SCC Online Guj 7131 being seized with a similar question has
also held as follows:
9. Having said that, it can be noticed from the bare perusal of the
provision that there exists a legislative command in it to reject the
plaint for one or more of the defects referred to in clauses (a) to (f).
The mandate for rejection of the plaint would imply its thorough
examination on all counts contemplated in clauses (a) to (f)
above. Thus, the jurisdiction of the Court is to examine the plaint
thoroughly on all counts and its non-examination on any of the
counts would render the order vulnerable to Section 115 of the
CPC inasmuch as, the Court has no jurisdiction to sustain the
plaint with one or more of the defects aforestated. As held in Maha-
raja Shri Manvendrasinhji R. Jadeja (supra), it would be obligat-
ory for the Court to apply the relevant legal provisions as also the
settled legal position applicable to the facts of the case; its failure
would consequent into failure in the exercise of jurisdiction ves-
ted in it.
41. The fact remains that though the issue with respect to the plaint being barred on
the ground two of the Defendants have expired has been taken into consideration
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by the Court while deciding the application under Order VII Rule 11 of CPC the
same was not stated in the application.
42. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2019 (2) GLH 559 in the case of Emrald Co Operative
Housing Society Limited Versus Gulamkadar S/o Gulam Husain Abdulkadar
And Bai Shakarbu Decd., wherein this Court has held in Para 31 as under:
“31. So far as the cause of action issue which has been agitated has
generated a debate amongst the learned Senior Advocates that such
point has not been agitated before the court below and as such not
available to the petitioner in the present proceedings. In this
context, if the main object of Order 7 Rule 11 is to be looked into,
this special power has been assigned to the court to curb the
abuse of the process and ill-motive by launching litigation and to
see that untenable proceedings may not waste public time and
money. The very object of provision related to rejection of plaint is
to curb such kind of litigation and it has been held by catena of
decisions that irrespective of the mode of litigation, it is the duty
of the Court itself to examine the tenability of such kind of
litigation and as such, this hyper-technical plea which has been
taken by learned Senior Advocate appearing for respondents that
such point cannot be examined by the Court appears to be devoid
of merit and non-dealing of such contention would rather defeat
the very object of Order 7 Rule 11(d) of CPC. So, irrespective of
objection, if the cause of action which has been stipulated in the
plaint is examined as a part of smart pleading by concealingPage 22 of 54
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undefinedmaterial facts, a bald assertion is made as if the Plaintiffs came to
know only in the year 2010, precisely on 24.2.2010, but the said
bald assertion appears to be completely misleading since it is based
upon suppression of material facts. Furthermore, the cause of
action is to be ascertained from the surrounding circumstances and
if the afore-mentioned circumstances in sequence are to be
examined, the cause of action, which has been mentioned in
paragraph No.4 of the plaint would clearly indicate that it is a part
and parcel of a smart pleading and nothing else to bring the suit
within the period of limitation. Such attempt in the considered
opinion of the Court is not to be encouraged particularly in view of
this peculiar set of circumstances. If all these issues analytically are
to be examined, it would lead to a situation that impugned order
which has been passed is absolutely laconic, based upon general
principle just to evade exercise of jurisdiction which is vested in
law and reflects a clear non-application of mind. The aforesaid
circumstances, which are apparent on the record encircled with the
averments of the plaint and the documents attached to it need not
create a situation where evidence at length is to be led. It may be
that limitation is a mixed question of law and fact but on the basis
of aforesaid undisputed facts, which are reflecting on record, this
general principle in the peculiar background of fact is not possible
to be digested just to allow to go on with a speculative litigation
which has been generated after losing from revenue proceedings.
…”
43. In view of the aforesaid legal position, the said contention of the Plaintiff that
the suit was barred by Section 43 of the Tenancy Act and that Defendant Nos. 2
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and 3 were deceased at the time of filing of the suit will have to be considered
even if the same is not the ground taken before the trial Court when the trial
Court decided the application at Exh.17 as the these are issues of law.
44. Further, these issues go to the root of the matter and hence also, the same will
have to be examined by this Court. These being pure legal proposition and is in
addition to what the trial Court has held and decided, the same can be raised by
the Defendant as an additional ground to reject the plaint even if the same is not
raised before the trial Court while filing Exh.17.
Death of Defendant Nos. 2 and 3 before Institution of the Suit
45. The first issue that has been raised by the Plaintiff is that plaint is required to
be rejected as the Defendant Nos. 2 and 3 had already passed away when the suit
was filed. In other words, the Petitioner has argued that the suit was filed against
dead person and hence, was not maintainable. The fact that Defendant Nos. 2
and 3 have died has been raised by the Defendant after filing of the suit and it
has been argued that the suit that has been filed by the Plaintiff is for specific
performance of their agreement and the same cannot be decreed in absence of
Defendant nos. 2 and 3 on record. Therefore, it is argued that the decree to be
passed by the Ld. Trial Court is un-severable.
46. Hence, as there was common issue regarding specific performance of the
contract and that there cannot be two conflicting decrees, it has been argued that
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the suit is required to be rejected. The learned Senior Advocate for the
Defendant has relied on the judgment reported in AIR 1962 SC 199 in the case
of Hira Lal Patni vs. Sri Kalinath, more particularly Para 4 which reads as
under:
“4. The only ground on which the decision of the High Court is
challenged is that the suit instituted on the original side of the
Bombay High Court was wholly incompetent for want of territorial
jurisdiction and that therefore, the award that followed on the
reference between the parties and the decree of Court, under
execution, were all null and void. Strong reliance was placed upon
the decision of the Privy Council in the case of Ledgard V/s. Bull,
13 Ind. App. l34 (P. C.). In our opinion, there is no substance in this
contention. There was no inherent lack of jurisdiction in the
Bombay High Court where the suit was instituted by the Plaintiff-
decree-holder. The plaint had been filed after obtaining the
necessary leave of the High Court under Cl. 12 of the Letters
Patent. Whether the leave obtained had been rightly obtained or
wrongly obtained is not a matter which can be agitated at the
execution stage. The validity of a decree can be challenged in
execution proceedings only on the ground that the court which
passed the decree was lacking in inherent jurisdiction in the sense
that it could not have seizin of the case because subject matter was
wholly foreign to its jurisdiction or that the Defendant was dead at
the time the suit had been instituted or decree passed, or some such
other ground which could have the effect of rendering the court
entirely lacking in jurisdiction in respect of the subject matter of thePage 25 of 54
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undefinedsuit in over the parties to it. But in the instant case there was no
such inherent lack of jurisdiction. The decision of the Privy Council
in the case of 13 Ind. App. 134 (P. C.) is an authority for the
proposition that consent or waiver can cure defect of jurisdiction
but cannot cure inherent lack of jurisdiction. In that case, the suit
had been instituted in the court of the subordinate Judge, who was
incompetent to try it. By consent of the parties, the case was
transferred to the Court of the District Judge for convenience of
trial. It was laid down by the Privy Council that as the Court in
which the suit had been originally instituted was entirely lacking in
jurisdiction, in the sense that it was incompetent to try it, whatever
happened subsequently was null and void because consent of
parties could not operate to confer jurisdiction on a court which
was incompetent to try the suit. That decision has no relevance to a
case like the present where there could he no question of inherent
lack of jurisdiction in the sense that the Bombay High Court was
incompetent to try a suit of that kind. The objection to its territorial
jurisdiction is one which does not go to the competence of the
Court and can, therefore, be waived. In the instant case, when the
Plaintiff obtained the leave of the Bombay High Court on the
original side, under Cl. 12 of the Letters Patent, the correctness of
the procedure or of the order granting the leave could be
questioned by the Defendant or the objection could be waived by
him. When he agreed to refer the matter to arbitration through
Court, he would be deemed to have waived his objection to the
territorial jurisdiction of the Court, raised by him in his written
statement. It is well settled that the objection as to local jurisdiction
of a court does not stand on the same footing as an objection to thePage 26 of 54
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undefinedcompetence of a court to try case. Competence of a court to try a
case goes to the very root of the jurisdiction, and where it is
lacking, it is a case of inherent lack of jurisdiction. On the other
hand an objection as to the local jurisdiction of a court can be
waived and this principle has been given a statutory recognition by
enactments like sec. 21 of the Code of Civil Procedure. Having
consented to have the controversy between the parties resolved by
reference to arbitration through court, the Defendant deprived
himself of the right to question the authority of the Court to refer
the matter to arbitration or of the arbitrator to render the award. It
is clear, therefore, that the Defendant is estopped from challenging
the jurisdiction of the Bombay High Court to entertain the suit and
to make the reference to the arbitrator. He is equally estopped from
challenging the authority of the arbitrator to render the award. In
our opinion, this conclusion is sufficient to dispose of the appeal. It
is not, therefore, necessary to determine the other points in
controversy, including the question whether the Decrees and Orders
Validating Act, 1936 (Act V of 1936) had the effect of validating
what otherwise may have been invalid.”
47. Learned Senior Advocate for Defendant has also relied on the judgment
reported in 1996 (10) SCC 293 in the case of Sadguru Saran Srivastava vs.
Dwarkaprasad Mathur wherein it has been held that Order 22 Rule 4(iv) will
not be applicable to the facts of the said case. Learned advocate for the
Defendant has also relied upon the judgment reported in 1999 (2) SCC 448 in
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the case of Badni (deced.) by Lrs. And others vs. Siri Chand (deced.) by Lrs.
And others wherein at para 3 it has been held as under :
“3. As pointed out earlier, the High Court dismissed the
appeals on the ground that the legal representatives of one Shiv
Lal, one of the appellants before it, was not brought on record and,
therefore, the appeal filed by Shiv Lal stood abated. As a result of
abatement of Shiv Lal’s appeal, according to the High Court, the
other appeals also stood abated. Because of the common issue
regarding the adoption of” Plaintiff’s predecessor-in-interest, there
cannot be two conflicting decrees. In other words, the adoption
issue was common and decisive in all the appeals pending before
the High Court and dismissing one appeal alone on the ground of
abatement and allowing the other appeals to proceed on merits
might end in conflicting decrees in case the other appeals are
accepted on merits.”
48. Learned advocate for Defendant has also relied on the judgment reported in
1997 (3) SCC 500 in the case of Municipal Council, Mandsaur vs. Fakirchand
and ors. wherein it has been held that suit for permanent injunction if filed
against municipality by three brothers as co-owners of property is decreed and
during pendency of appeal if one of the co-owners died to the knowledge of the
municipality and the legal heirs having not been joined, the appeal shall abate.
However, in the present case, the suit is for specific performance of the
agreement wherein all the individuals i.e. Defendant nos.1, 2 and 3 have signed
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the said document. Therefore, it cannot be said that just because Defendant nos.2
and 3 have expired, the suit is required to be rejected under the provisions of
Order VII Rule 11 against Defendant no.1.
49. Moreover under Order I Rule 10 and Order 22 of the CPC, the Plaintiff would
be well within its right at any instance application to join the legal
representatives of deceased Defendant nos.2 and 3 on record as the Plaintiff was
not aware of the death of Defendant nos.2 and 3. Further, subject to law of
limitation even a fresh suit could have been instituted against legal
representatives of deceased Defendant Nos. 2 and 3.
50. It can be well presumed in the facts of this case that had the Plaintiff had
known about the death of Defendants at the time of institution of suit, he would
have filed suit at first instance against heirs of Defendant nos.2 and 3 and even
otherwise the suit cannot be said to be barred by law only on the ground that the
suit has been filed against Defendant nos. 2 and 3 who were dead at the time of
filing the suit as even otherwise the right to sue survived against Defendant no.1
was a signatory to the said agreement dated 17.03.1995.
51. Merely because two parties have expired, it cannot be said that no cause can
survive against the third party who is also a signatory and hence, suit against the
Defendant no.1 cannot be said to be barred by law.
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52. Moreover, it also trite law that there cannot be a partial rejection of the Plaint.
In fact, the Honand, hence, the said contention of the Defendant that the suit
having been filed against Defendant nos.2 and 3 who were dead at the time
when the suit was filed, cannot be accepted in the facts of the present case and
the plaint cannot be rejected under provisions of Order VII Rule 11 of the CPC
being barred by law on the said ground.
53. In fact, dealing with a similar situation, the Hon’ble Apex Court in Sejal Glass
(S) v. Navilan Merchants Pvt. Ltd., (2018) 11 SCC 780 held in categorical terms
as follows:
8. We are afraid that this is a misreading of the Madras High Court
judgment. It was only on the peculiar facts of that case that want of
Section 80 CPC against one defendant led to the rejection of the
plaint as a whole, as no cause of action would remain against the
other defendants. This cannot elevate itself into a rule of law, that
once a part of a plaint cannot proceed, the other part also cannot
proceed, and the plaint as a whole must be rejected under Order 7
Rule 11. In all such cases, if the plaint survives against certain
defendants and/or properties, Order 7 Rule 11 will have no
application at all, and the suit as a whole must then proceed to
trial.
54. Therefore, in view of the aforesaid judgment of the Hon’ble Apex Court, the
Plaint cannot be rejected on this count and hence, the said contention raised by
the Petitioner is rejected.
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55. Next contention that has been raised by the Petitioner – Defendant is with
respect to the provisions of Section 43 of the Tenancy Act. Fact remains that
Agreement on which the Plaintiff is seeking specific performance also states that
the suit property is a new tenure land and in the Plaint also, there is a clear
averment of the Plaintiff that the suit property is a new tenure land.
56. At the time when the Agreement dated 17.03.1995 was entered into between
the parties, the suit property was new tenure land and the same was to be
converted into an old tenure land and thereafter the sale-deed was to be executed
between the parties. Therefore, the admitted position before the Court is that an
Agreement that was entered into between the parties was with respect to new
tenure land and hence, its sale or agreement to sell was barred by law. The suit
has been filed for specific performance of the agreement dated 17.03.1995,
which in view of Section 43 of the Tenancy Act is illegal in view of restrictions
contained therein.
57. Section 43 of the Tenancy Act which reads as under and therefore
43. (1) No land or any interest therein purchased by a tenant under
section 17B, 32, 32F, 32-I. 6[*], 7[32U, 43-1D or 88E] or sold to any
person under section 32P or 64 shall be transferred or shall be agreed
by an instrument in writing to be transferred, by sale, gift, exchange,
mortgage, lease or assignment, without the previous sanction of the
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Collector and except in consideration of payment of such amount as
the State Government may by general or special order determine; and
no such land or any interest, therein shall be partitioned without the
previous sanction of the Collector
[Provided that no previous sanction of the Collector shall be required,
if the partition of the land is among the members of the family who
have direct blood relation or among the legal heirs of the tenant:
Provided further that the partition of the land as aforesaid shall not
be valid if it is made in contravention of the provisions of any other
law for the time being in force: Provided also that such members of
the family or the legal heirs shall hold the land, after the partition, on
the same terms, conditions and restrictions as were applicable to such
land or interest therein purchased by the tenant or the person.
58. The Division Bench of this Court in the case of Bharatbhai Devashibhai
Ukani vs. Vinaben Babaji and ors. in First Appeal No. 4023 of 2023 in Para
11, has referred to the issue in question that has been decided by the Full Bench
in the case of deceased Shaikh Ismailbhai Husenbhai thro’ Legal Heirs (supra),
which reads as under:
“11. Issue, in question is no longer res-integra in view of the recent
judgment of the Full Bench, in the case of deceased Shaikh
Ismailbhai Hushainbhai through legal heirs (supra). The Full
Bench, has confined its examination to the provision of Section 43
of the Act of 1948. Paragraph 21 in this behalf reads thus;
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“21. Furthermore, in light of the controversy before us, as can be
seen from the previous decisions of this Court noted hereinbefore,
we do not find any reason to enlarge the scope of the reference and
confine ourselves to the question of reference to examine “whether
a plaint is liable to be rejected on the ground that the suit for
specific performance of contract based on an illegal or invalid
agreement to sell, hit by Section 43 of the Tenancy Act,1948, is not
maintainable?”
59. In view of the said judgment it has been held and observed that it is only the
Civil Court that can look into the fact as to whether the agreement on the basis
of which the suit for specific performance is instituted is a valid agreement and
not hit by any statutory provisions or forbidden by law or opposed to public
policy.
60. If the agreement itself is invalid being hit by section 43 of the Tenancy Act, no
cause of action can be said to have arisen asking Defendant to perform his part
of the contract and there is no sanction and the agreement itself is illegal and
invalid. Para 12 of the decision rendered in First Appeal No. 4023 of 2023
reads as under:
“12. It has been held and observed that the Civil Court, alone can look into
the fact that as to whether the agreement on the basis of which, the suit for
specific performance is instituted is a valid agreement, not hit by any
statutory provision, or forbidden by law or oppose to public policy. The
Full Bench, has also considered the object and scope of Order VII Rule 11Page 33 of 54
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undefinedof the Code, and referred to the judgment in the case of Dahiben vs.
Arvindbhai Bhanusali (Gajara) dead through LHS., reported in (2020) 7
SCC 366, wherein, it has been held and observed that the cause of action
for a suit for specific performance of an agreement of refusal by the
Vendor inspite of readiness and willingness of the vendee to execute the
sale deed, will not be existing in a case where the agreement itself is
invalid being hit by Section 43 of the Act of 1948, inasmuch as, no cause
of action can be said to have arisen, asking the Defendant to perform his
part of the contract when there is no sanction and the agreement itself is
illegal or invalid. Paragraphs 138, 139, 151 and 153 of the judgment of
Full Bench, read thus;
“138. We may clarify that we are not concerned with the dispute
pertaining to the validity of an agreement, i.e. the dispute whether an
agreement is hit by Section 43 or not, i.e. whether it is valid or not?
The issue before us is plain and simple; as to whether the agreement
which has been executed with a view to transfer a restricted tenure
land as prescribed in Section 43(1), without the permission of the
Collector, can be specifically enforced by the Civil Court by granting
a decree of specific performance of such an agreement.” Our concern
is about the jurisdiction of the Civil Court to decide on the question
of enforceability of such an agreement of sale, which in our
considered opinion clearly resides in the Civil Court as held by the
Division Bench in Ganpatlal (supra). The Civil Court alone will have
jurisdiction to adjudicate on the question of enforceability of the
agreement of sale, on the basis of which the suit for specific
performance has been executed. It is the Civil Court which alone can
look into the fact as to whether the agreement on the basis of which
the suit for specific performance is instituted is a valid agreement, notPage 34 of 54
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undefinedhit by any statutory provision, or forbidden by law or opposed to
public policy.
139. The question as to enforceability of an agreement hit by
Section 43 of the Tenancy Act, 1948, to grant a decree of specific
performance, cannot be by any stretch of imagination, a question
within the scope of the jurisdiction of the revenue authority under the
Tenancy Act, 1948. There is no gainsaying that Civil Court will not be
required to stay a suit for specific performance based on an
agreement hit by Section 43(1) of the Tenancy Act, 1948 and relegate
the parties to approach the Mamaltdar to decide on the question of
validity of such an agreement. (g) Enforceability of the agreement hit
by Section 43 of the Tenancy Act:-
151.On a careful reading of the provision in Order VII, Rule 11 of
the Code of Civil Procedure and the law laid down by the Apex
Court in Dahiben (supra), in light of the dispute before us, we may
note that in order to maintain the suit for specific performance of
agreement, which is hit by Section 43(1) of the Tenancy Act, 1948,
the Plaintiff would be required to disclose the cause of action for
seeking a decree of specific performance of such an agreement. The
cause of action for a suit for specific performance of an agreement
of refusal by the Vendor inspite of readiness and willingness of the
vendee to execute the sale deed, will not be existing in a case where
the agreement itself is invalid being hit by Section 43(1), inasmuch
as, no cause of action can be said to have arisen asking the
Defendant to perform his part of the contract when there is no
sanction and the agreement itself is illegal or invalid. Further, onPage 35 of 54
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undefinedthe averments made in the plaint, in conjunction with the documents
relied upon by the Plaintiff, the Civil Court will be in a position to
ascertain the question of enforceability of the agreement. It will be in
a position to ascertain that the agreement, which is the basis of the
suit, whether is hit by Section 43(1) or not, inasmuch as, to seek a
decree of specific performance of agreement, the Plaintiff is required
to disclose and establish two circumstances: (I) firstly, that the
documents, which is the basis of the suit is a valid document in the
eye of law and (ii) secondly, that the cause of action has arisen prior
to the presentation of the plaint. If the documents, i.e. the agreement
is an illegal or invalid document in the eye of law, the Civil Court
from the statement in the plaint itself will ascertain the suit being
barred by law. In any case, a suit basis of which is an invalid
document in the eye of law or where there exists no cause of action
to institute the suit on the date of the presentation of the plaint, the
Civil Court will have no option but to reject the plaint, at the
threshold, under Order VII, Rule 11 of the Code of Civil Procedure.
The arguments that the Civil court will be required to frame the issue
as to the validity of the agreement, which is the basis of the suit and
must necessarily proceed with the trial to arrive at the decision as to
whether the decree of specific performance of an agreement hit by
law, is to be granted or not, does not appeal to us.
153. We are in respectful agreement with the decision of the Division
Bench in Naranbhai Kanjibhai Gajera (supra), holding that the
Division Bench decision in Amarben (supra) can be said to be ‘per
incuriam’ ignoring statutory provisions and in view of the decision of
another Division Bench dated 21.06.2021 in Vijaybhai Shambhubhai
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Patel (supra), which was challenged in Special Leave to Appeal
(Civil) No.5124 of 2022, and which has been dismissed vide
judgement and order dated 10.11.20222 affirming the Division Bench
judgement in Vijaybhai Shambhubhai Patel (supra).”
61. Whereas, the Learned Senior Advocate for Respondent – Plaintiff has relied on
the judgment in case of Trust of Shri Laxminarayan Temple and its
Subordinate Temples vs. Ajendraprasadji Narendraprasadji Pande and others
reported in 2013 (0) AIJEL 229409 wherein it has been held that the Court
should restrict the scrutiny only to the averments made in the plaint. The facts of
the said case were with respect to rejection of the plaint on the ground that the
suit was filed without permission of the Charity Commissioner and the Hon’ble
Court held that there was no requirement for Plaintiff to plead performance of
condition precedent for obtaining leave from the Charity Commissioner in terms
of Section 50 of the Trust Act in the plaint. Even if it is assumed that Section 50
of the Trust Act applied to that suit, the issue in the said case is totally different
to the issue involved in the present Revision Application.
62. In the present Revision Application, the contention has been raised that the
agreement itself is void and hit by Section 43 of the Tenancy Act and, therefore,
the said judgment relied on by learned Senior Advocate for the Plaintiff will not
be applicable to the facts of the present case.
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63. In any case, this Court is bound by the judgment of the Hon’ble Full Bench in
Shaikh Ismailbhai Hushainbhai through legal heirs (supra) and Hon’ble
Division Bench in Bharatbhai Devashibhai Ukani vs. Vinaben Babaji and ors.
(supra). These judgments squarely cover the position of law on the application
of Order VII Rule 11 to Agreements hit by Section 43 of the Tenancy Act and
hence, they squarely apply to the facts of the present case.
64. Therefore, in view of provisions of Section 43 of the Tenancy Act and the
admitted position that the suit property was a new tenure land, the plaint was
liable to be rejected under provisions of Order VII Rule 11 of the CPC on the
ground that the suit for specific performance of the contract based on illegal and
invalid agreement to sale which is hit by section 43 of the Tenancy Act and
hence, is not maintainable.
No Cause of Action
65. The Defendant has raised a contention that no cause of action had arisen for the
Plaintiff to file the present suit as the agreement dated 17.03.1995 is only an
agreement whereby parties have decided to enter into an agreement to sale and
the agreement dated 17.03.1995 the parties have not decided to execute the sale-
deed.
66. With respect to the said contention, in the agreement dated 17.03.1995 the
parties have clearly stated that the parties have decided to sell the property and,
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therefore, it cannot be said that in view of recitals in the agreement the same is
only with respect to entering into a further agreement and the same is not for
execution of sale-deed. Such a hyper-technical approach cannot be taken in an
Application under Order VII Rule 11.
67. Moreover, this is a contention cannot be proved without leading of evidence
and hence, the present contention regarding non-disclosure of cause of action is
required to be rejected.
Limitation Act
68. With respect to the contention that the suit is time barred the following dates
and events are necessary for adjudication of the said issue.
i. Agreement dated 17.03.1995 with respect to the suit property executed
between the Plaintiff and the Defendants;
ii. There is specific term in the said agreement that an amount of
Rs.10,00,000/- will be paid within seven days (i.e. on or before24.03.1995);
iii. There is specific term in the said agreement dated 17.03.1995 that the
agreement shall be valid for nine months from the date of execution of the
agreement (i.e. 17.12.1995);
iv. The amount of Rs.10,00,000/- has not been paid by the Plaintiff within
period of seven days or till filing of the suit;
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vi. The Defendant issued public notice to get title clearance certificate to sell
the suit property on 20.03.2014;
vii. The Plaintiff filed objection to the said public notice on 22.03.2014;
viii. The Plaintiff issued a legal notice dated 03.08.2018 seeking specific
performance of the agreement;
ix. Suit for specific performance is filed on 17.10.2018.
69. In this background, the fact that has to be considered is that in view of Article
54 of Limitation Act, which reads as under, there was a clear date fixed for the
performance of the agreement and that the agreement shall be valid only for 9
months from 17.03.1995. Therefore, the right to sue first accrue on completion
of nine months from 17.03.1995 and as per section 9 of the Limitation Act
where once the time has begun to run no subsequent disability or inability to
institute the suit stops it. Therefore, the period of limitation started from nine
months from the date of agreement. The fact also remains that the Plaintiff was
supposed to pay an amount of Rs.10,00,000/- within one week from the date of
Agreement which has not been paid.
70. Therefore, when once limitation period commences, it continues to run
irrespective of any inability or disability to institute a suit. Article 54 of Part-II
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of the Schedule to the Limitation Act stipulates that the limitation for filing suit
for specific performance is three years from the date fixed for the performance
and in alternative when no date is fixed, three years from the date when the
Plaintiff has noticed that the performance has been refused.
71. Section 9 of the Limitation Act, 1963 stipulates that once the limitation period
commences, it continues to run, irrespective of any subsequent disability or
inability to institute the suit. Article 54 of the Limitation Act reads thus:
Article Description of Suit Period of Limitation Time from which
period begins to
run
54. For specific Three years. The date fixed for
performance of a the performance, or,
Contract if no such date is
fixed, when the
plaintiff has notice
that performance is
refused
72. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2019 (0) AIJEL SC 64905 in the case of Narayananna
vs. Shri Govindappa wherein the Apex Court has held that-
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“Maxim ‘ex turpi causa non oritur actio’ and ‘in pari delicto potior
est conditio defendetis et possidentis’- applicability – although
illegality is not pleaded by Defendant nor is relied upon by him by
way of defence, yet court itself, upon illegality appearing upon
evidence, will take notice of it, and will dismiss action ex turpi
causa non oritur actio – no polluted hand shall touch pure fountain
of justice – where parties are concerned in illegal agreements or
other transactions, courts of equity following rule of law as to
participators in common crime will not interpose to grant any relief,
acting upon maxim in pari delicto potior est conditio defendetis et
possidentis.”
73. In the present case, the agreement dated 17.03.1995 is hit by Section 43 of the
Act, 1948 and, therefore, the same being void agreement cannot be enforced.
74. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2020 (0) AIJEL SC 66338 in the case of Dahiben V/S
Arvindbhai Kalyanji Bhanushali (Gajra) ( D) Thr. Lrs, wherein the Apex
Court has held in para 12.1, 12.9 and 13 that-
“12.1 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;
(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 isPage 42 of 54
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undefinedproperly 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 led 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.”
(emphasis supplied) 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. 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. In Azhar Hussain v. Rajiv Gandhi, 1986 Supp. SCC 315,
Followed in Maharaj Shri Manvendrasinhji Jadeja v. Rajmata
Vijaykunverba w/o Late Maharaja Mahedrasinhji, (1998) 2 GLH
823 this Court held that the whole purpose of conferment of powers
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under this provision is to ensure that a litigation which is
meaningless, and bound to prove abortive, should not be 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.”
12.9 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, (2003) 1 SCC 557. The plea
that once issues are framed; the matter must necessarily go to trial
was repelled by this Court in Azhar Hussain (supra).
13. “Cause of action” means every fact which would be necessary
for the Plaintiff to prove, if traversed, in order to support his right
to judgment. It consists of a bundle of material facts, which are
necessary for the Plaintiff to prove in order to entitle him to the
reliefs claimed in the suit.”
75. In Swamy Atmanand v. Sri Ramakrishna Tapovanam, (2005) 10 SCC 51 the
Hon’ble Court held:
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undefined“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”
(emphasis supplied)
76. In T. Arivandandam v. T.V. Satyapal & Anr., (1977) 4 SCC 467. 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 ful lled. And, if clever
drafting has created the illusion of a cause of action, nip it in the
bud at the rst hearing …” (emphasis supplied)
77. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2
SCC 170, 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
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out in the plaint. If, however, by clever drafting of the plaint, it has created the
illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy
v. Syed Jalal, (2017) 13 SCC 174, held that it should be nipped in the bud, so
that bogus litigation will end at the earliest stage. The Court must be vigilant
against any camou age or suppression, and determine whether the litigation is
utterly vexatious, and an abuse of the process of the court.
78. The facts of the said case will squarely be applicable to the present case as in
the present case also after the agreement dated 17.03.1995 the Plaintiff has
remained completely silent for the period of 18 years and has filed the suit
in the year 2018 for specific performance of an agreement executed in the
year 1995.
79. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2021 (0) AIJEL SC 67716 in the case of ===== wherein
the Apex Court has held that averments in the plaint should not only be formal
but also meaningful.
80. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2020 (0) AIJEL SC 65828 in the case of Canara Bank
vs. P. Selathal wherein the Apex Court has held that if the suit is vaxatious and
is filed with mala fide intention, the same is required to be rejected under
provision of Order VII Rule 11 (d) of the CPC.
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81. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2019 (0) AIJEL SC 63798 in the case of Raghwendra
Sharan Singh vs. Ram Prasad Singh wherein at para:7 it has been held that-
“7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 of the CPC
to the facts of the case in hand and the averments in the plaint, we
are of the opinion that both the Courts below have materially erred
in not rejecting the plaint in exercise of powers under Order 7 Rule
11 of the CPC. It is required to be noted that it is not in dispute that
the gift deed was executed by the original Plaintiff himself along
with his brother. The deed of gift was a registered gift deed. The
execution of the gift deed is not disputed by the Plaintiff. It is the
case of the Plaintiff that the gift deed was a showy deed of gift and
therefore the same is not binding on him. However, it is required to
be noted that for approximately 22 years, neither the Plaintiff nor
his brother (who died on 15.12.2002) claimed at any point of time
that the gift deed was showy deed of gift. One of the executants of
the gift deed – brother of the Plaintiff during his lifetime never
claimed that the gift deed was a showy deed of gift. It was the
appellant herein-original Defendant who led the suit in the year
2001 for partition and the said suit was led against his brothers to
which the Plaintiff was joined as Defendant No. 10. It appears that
the summon of the suit led by the Defendant being T.S. (Partition)
Suit No. 203 of 2001 was served upon the Defendant No.10-
Plaintiff herein in the year 2001 itself. Despite the same, he
instituted the present suit in the year 2003. Even from thePage 47 of 54
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undefinedaverments in the plaint, it appears that during these 22 years i.e.
the period from 1981 till 2001/2003, the suit property was
mortgaged by the appellant herein-original Defendant and the
mortgage deed was executed by the Defendant. Therefore,
considering the averments in the plaint and the bundle of facts
stated in the plaint, we are of the opinion that by clever drafting the
Plaintiff has tried to bring the suit within the period of limitation
which, otherwise, is barred by law of limitation. Therefore,
considering the decisions of this Court in the case of T.
Arivandandam (supra) and others, as stated above, and as the suit
is clearly barred by law of limitation, the plaint is required to be
rejected in exercise of powers under Order 7 Rule 11 of the CPC“.
82. In view of the said judgment, when considering the averments in the plaint if it
is found that suit is clearly barred by law of limitation the same can be rejected
in exercise of powers under provisions of Order VII Rule 11 (d) of the CPC.
83. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2021 (0) AIJEL SC 67048 in the case of Asha John
Divianathan V/S Vikram Malhotra, wherein the Apex Court has held that-
” Rule of enforcement of contract – when enforcement of contract is
against any provision of law, that will amount to enforcement of an
illegal contract – contract per se may not be illegal – but its
enforcement requires compliance of statutory conditions, failure of
which will amount to statutory violation – a Court which is
expected to enforce law, cannot be a party to such a decree.”
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84. The said judgment will be applicable to the facts of the present case in view of
the fact that Section 43 of the Tenancy Act, would prohibit the said agreement
and, therefore, the enforcement of agreement is against provisions of law and,
therefore, the suit was required to be rejected under the said provision.
85. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2021 (0) AIJEL SC 67061 in the case of K. Akbar Ali vs.
K. Umarkhan wherein the Apex Court has held in para 5, 7 and 8 as under:
“5. It is well settled that while considering an application under
Order VII Rule 11 of the CPC, the question before the Court is
whether the plaint discloses any cause of action or whether the suit
is barred by any law, on the face of the averments contained in the
plaint itself. While considering an application under Order VII Rule
11 of the CPC the Court is not to look into the strength or weakness
of the case of the Plaintiff or the defence raised by the Defendant.
7. In any case, an application under Order VII Rule 11 of the CPC
for rejection of the plaint requires a meaningful reading of the
plaint as a whole. As held by this Court in ITC v. Debts Recovery
Appellate Tribunal reported in AIR 1998 SC 634, clever drafting
creating illusions of cause of action are not permitted in law and a
clear right to sue should be shown in the plaint. Similarly the Court
must see that the bar in law of the suit is not camouflaged by
devious and clever drafting of the plaint. Moreover, the provisions
of Order VII Rue 11 are not exhaustive and the Court has thePage 49 of 54
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undefinedinherent power to see that frivolous or vexatious litigations are not
allowed to consume the time of the Court.
8. In this case, a meaningful reading of the plaint as a whole makes
it abundantly clear that the relief claimed in the suit is barred in
view of the restricted scope of the Power of Attorney given by the
first Defendant to Mr. Zahir Ali.”
86. In view of the said judgment also it has been held that clever drafting creating
illusion of cause of action are not permitted and the Court has to look at the fact
that the bar in law of suit is not camouflaged by devious and clever drafting of
plaint and in the present suit also the Plaintiff has by clever drafting tried to
create an illusion that the cause of action to file present suit has arisen within
period of limitation.
87. The judgment that has been relied on learned Senior Advocate for the
Defendant reported in 2018 (0) AIJEL SC 239093 in the case of Van Oil
Petroleum Limited vs. M.V. Danali wherein the Apex Court has held in para 8
as under:
“8. At this stage, it is required to be noted that the Plaintiff is
invoking Section 17 of the Limitation Act and is praying for
exclusion of time on the ground of fraud. However, it is required to
be noted that fraud as such is alleged in view of the subsequent
development of transfer of Vessel from one owner to another owner
and there are no allegations and/or pleadings with respect to fraud
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undefinedVessel. As observed hereinabove, the period of limitation would
start running from 29.03.2012 even considering the specific
averments and pleadings in the Plaint. As per Section 9 of the
Limitation Act, when once the time has begun to run, no subsequent
disability or inability to institute a suit or make an application
stops it. Therefore, even considering Section 9 of the Limitation Act,
once the period of limitation has started running from 29.03.2012,
any subsequent act or omission on the part of the Defendant on the
basis of which some fraud is alleged, the period of limitation would
not be saved considering Section 17 of the Limitation act, as
alleged or contended.”
88. In the present case also, the agreement was valid for a period of nine months
from 17.03.1995 and once the time has begun no subsequent disability and
inability to institute the suit stops it and therefore also the suit is barred on the
point of limitation.
89. It is an admitted position that an amount of Rs.10,00,000/ was to be paid within
seven days from the date of execution of agreement dated 17.03.1995. If we take
the date of validity of the agreement, the said agreement was valid for nine
months from the date of execution of agreement dated 17.03.1995 and within the
said period the specific performance of the agreement was to be executed and,
therefore, it can be clearly held that the first cause of action to file the suit has
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arisen on 17.12.1995 i.e. nine months from the date of the agreement dated
17.03.1995 and the suit having been filed on 17.10.2018 is clearly time barred.
90. Assuming for a moment that no time was fixed in the agreement even then by
the fact that the date when the Plaintiff has noticed that the performance has
been refused is when the Defendant issued a public notice dated 20.03.2014
wherein it can be clearly established that the Defendant has refused specific
performance of the agreement and therefore there is nothing on record to show
that the Defendant had agreed to comply with the agreement dated 17.03.1995
on 20.03.2014 and / or the period fixed for execution of the agreement dated
17.03.1995 was ever extended by the Defendant.
91. Bare perusal of the plaint clearly shows that the cause of action has arisen in
the year 1995 and after period of 23 years the Plaintiff has filed the suit for
specific performance. Though it is true that issue of limitation is mixed question
of law and fact but if by such mere bold assertion if the application under the
provisions of Order VII Rule 11 (d) of the CPC is discarded the same would
frustrate the very object the provisions and would allow frivolous litigation
which are hopelessly time barred will have to be adjudicated irrespective of its
tenability.
92. Looking at the facts of the present case as pleaded in the plaint and the
documents annexed with the plaint the suit for specific performance having been
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filed after 23 years from the date of agreement and the fact that the validity of
the agreement was nine months from the date of execution of agreement dated
17.03.1995 and the fact that the date was fixed for execution of agreement to
sale and even otherwise even if the date of notice of refusal is considered then
also the public notice inviting objections were issued by the Plaintiff on
20.03.1995.
CONCLUSION
93. Therefore, in view of the discussion hereinabove, the Plaint is not liable to be
rejected on the count of Defendant Nos. 2 and 3 being deceased before
institution of the suit and alleged non-disclosure of cause of action. However,
the Plaint is clearly barred by the law of limitation. Moreover, the Agreement of
which specific performance is sought is hit by Section 43 of the Tenancy Act. In
view thereof, the Plaint is liable to be rejected under Order VII Rule 11 (d).
94. Considering the aforesaid, the impugned Order is not just and proper and
suffers from material irregularity in exercise of jurisdiction so vested in it.
Accordingly, a case for interference is made out by the Defendant. From a
overall reading of the Plaint and on consideration of relevant propositions, the
present suit is clearly hit by Section 43 of the Tenancy Act and also by law of
limitation.
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95. For the foregoing reasons, the impugned Judgment and Order dated 03.01.2022
passed below Exh.17 by 7th Additional Senior Civil Judge, Ahmedabad Rural in
Special Civil Suit No.592 of 2018 is not sustainable in law and the same
deserves to be quashed and set aside.
96. In view thereof, the present Civil Revision Application is accordingly allowed.
The Plaint as mentioned above is liable to be rejected under Order VII Rule 11
hence and stands rejected. Rule is made absolute. No order as to costs.
(SANJEEV J.THAKER,J)
MISHRA AMIT V.
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