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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

FIRST APPEAL NO.2324 of 2016

With
CIVIL APPLICATION NO.10577 of 2016
In FIRST APPEAL NO.2324 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH Sd/­

and
HONOURABLE MR.JUSTICE A.S. SUPEHIA Sd/­
===================================================
1 Whether Reporters of Local Papers may
be allowed to see the judgment ? NO

2 To be referred to the Reporter or

not ? NO

3 Whether their Lordships wish to see

the fair copy of the judgment ? NO

4 Whether this case involves a

substantial question of law as to the
interpretation of the Constitution of NO
India or any order made thereunder ?

===================================================
DAHIBEN D/O JAGABHAI RANCHHODBHAI & 2....Appellant(s)
Versus
ARVINDBHAI KALYANJI BHANUSALI (GAJRA) ­ DECD. &
5....Defendant(s)
===================================================
Appearance:
MR NIKHIL S KARIEL, ADVOCATE for Appellant(s) No. 1 ­ 3.4
MS KJ BRAHMBHATT, CAVEATOR for Defendant(s) No. 1.1 ­ 1.3
MS VARSHA BRAHMBHATT, CAVEATOR for Defendant Nos.1.1­ 1.3
===================================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 19/10/2016
ORAL (COMMON) JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH)

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(1) Feeling aggrieved and dissatisfied with the

impugned judgment and order dated 12.08.2016
passed by learned 12th Additional Senior
Civil Judge, Surat, below Exh.24 in Special
Civil Suit No.718 of 2014, by which the
learned trial Court has allowed the said
application preferred by original defendant
Nos.2 and 3 and subsequently has rejected
the plaint under Order VII Rule 11 (d) of
the Code of Civil Procedure, 1908, the
original plaintiffs have preferred the
present first appeal.
(2) The facts leading to filing of the present
first appeal in nutshell are that the
original plaintiffs and original defendant
No.6 executed a registered sale deed in
favour of original defendant No.1 on
02.07.2009 with respect to land bearing
Revenue Survey No.610, Block No.573,
situated at Mota Varachha, Dist.Surat. That
the said registered sale deed was presented
before Sub­Registrar (Katar Gam), Surat.
That in the said sale deed particulars with
respect to the sale consideration by cheques
have been mentioned and as such the original
plaintiffs and original defendant No.6 have
accepted that they have received full sale
consideration by cheques, particulars of
which are mentioned in registered sale deed.

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(3) That thereafter by a subsequent registered

sale deed dated 01.04.2013 the aforesaid
land has been further transferred by
original defendant No.1 in favour of
original defendant Nos.2 and 3 for a sale
consideration of Rs.2,01,00,000/­. It
appears that even the subsequent registered
sale deed in favour of original defendant
Nos.2 and 3 has been registered with the
Office of Sub­Registrar (Rander), Surat, on
01.04.2013 itself.

(4) That after period of approximately five

years from the date of execution of the
first sale deed dated 02.07.2009, executed
by the original plaintiffs and original
defendant No.6, the appellants­original
plaintiffs had instituted Special Civil Suit
No.718 of 2014 for a declaration and
permanent injunction and to declare that the
sale deed dated 02.07.2009 executed by the
original plaintiffs and original defendant
No.6 in favour of original defendant No.1 in
respect of land bearing Revenue Survey
No.610, Block No.573, situated at Mota
Varachha, Dist.Surat, registered with the
Office of Sub­Registrar (Katar Gam), Surat,
bearing Registration No.5158 be declared as
null and void and ineffective as the same is

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without payment of any sale consideration

and consequently to declare that the same is
not binding to the original plaintiffs.
Plaintiffs also prayed to declare that the
subsequent registered sale deed executed by
original defendant No.1 in favour of
original defendant Nos.2 and 3 dated
01.04.2013 is also null and void,
ineffective and not binding to the
plaintiffs. It was further prayed to restore
the possession of the aforesaid land in
question in favour of the plaintiffs and
also for the mesne profit as well as for the
permanent injunction.

(5) Having served with the summons of the notice

of the suit, original defendant Nos.2 and 3
submitted application Exh.24 to reject the
plaint under Order VII Rule 11 (a) and (d)
of the CPC. By the impugned judgment and
order dated 12.08.2016, the learned trial
Court has allowed the said application below
Exh.24 and has rejected the plaint under
Order VII Rule 11 (d) of the CPC, by
observing and holding that the suit is
barred by law of limitation.

(6) Feeling aggrieved and dissatisfied with the

impugned judgment and order dated 12.08.2016

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passed by the learned trial Court, rejecting

the plaint of the appellants­original
plaintiffs under Order VII Rule 11 (d) of
the CPC, the original plaintiffs have
preferred the present first appeal.

(7) Shri Nikhil Kariel, learned advocate

appearing on behalf of the appellants­
original plaintiffs, has vehemently
submitted that in the facts and circumstance
of the case the learned trial Court has
materially erred in rejecting the plaint at
this stage in exercise of powers under Order
VII Rule 11 (d) of the CPC. It is submitted
that as such the issue of limitation is
mixed questions of law and facts and,
therefore, the learned trial Court ought not
to have rejected the plaint under Order VII
Rule 11 (d) of the CPC at this stage on the
ground that the suit is barred by law of
limitation. It is further submitted by Shri
Kariel, learned advocate appearing on behalf
of the appellants­original plaintiffs, that
as such full sale consideration, though
mentioned in the registered sale deed dated
02.07.2009, has not been paid and,
therefore, the sale deed can be said to be
without consideration and considering the
averments made in the plaint, the learned

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trial Court ought not to have rejected the

plaint at this stage. It is further
submitted by Shri Kariel, learned advocate
appearing on behalf of the appellants­
original plaintiffs, that as such in any
case the suit with respect to the sale deed
executed by the original defendant No.1 in
favour of the original defendant Nos.2 and 3
dated 01.04.2013 cannot be said to be barred
by law of limitation. It is further
submitted that as such the original
defendant No.1 had in fact played fraud by
not making payment of full sale
consideration and got the documents/ sale
deed executed in his favour. It is submitted
by Shri Kariel, learned advocate appearing
on behalf of the appellants­original
plaintiffs, that therefore when it is a case
of fraud, the plaint ought not to have been
rejected under Order VII Rule 11 (d) of the
CPC. Making above submissions, it is
requested to admit/allow the present appeal.
No further submission is made.

(8) The present appeal is vehemently opposed by

Ms.K.J.Brahmbhatt, learned advocate
appearing on behalf of respondent Nos.1.1
and 1.3­original defendant No.1. It is
submitted that in the facts and circumstance

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of the case the learned trial Court has not

committed any error in rejecting the plaint
under Order VII Rule 11 (d) of the CPC on
the ground that the suit is barred by law of
limitation. It is further submitted that the
sale deed was executed by the original
plaintiffs and original defendant No.6 in
favour of the original defendant No.1 on
02.07.2009 and even thereafter when original
defendant No.1 sold the property in favour
of original defendant Nos.2 and 3 by
registered sale deed dated 01.04.2013,
thereafter the suit has been instituted
after a period of approximately five years
of execution of the first registered sale
deed dated 02.07.2009, making grievance for
the first time in the plaint that the sale
consideration mentioned in the sale deed has
not been paid. It is submitted by
Ms.Brahmbhatt, learned advocate appearing on
behalf of respondent Nos.1.1 and 1.3­
original defendant No.1, that till the suit
was instituted in the year 2014, at no point
of time any grievance was raised or made
that full payment of sale consideration is
not made to the original plaintiffs. It is
submitted that therefore and thereafter when
the original defendant No.1 had already sold
the property in question in favour of

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original defendant Nos.2 and 3 by subsequent

registered sale deed dated 01.04.2013 and
that too on payment of full sale
consideration of Rs.2,01,00,000/­ and when
it has been found that the suit is barred by
law of limitation, no error has been
committed by the learned trial Court in
rejecting the plaint under Order VII Rule 11
(d) of the CPC.

(9) Now so far as the submission on behalf of

the original plaintiffs that as far as the
prayer in respect of the registered sale
deed dated 01.04.2013 executed by original
defendant No.1 in favour of original
defendant Nos.2 and 3 the suit can be said
to be within limitation is concerned, it is
submitted that as such nothing has been
alleged against original defendant Nos.2 and
3, who are as such the bona fide purchasers.
It is submitted that the entire allegations
in the plaint are against original defendant
No.1. It is submitted that therefore by
clever drafting and making the prayer to set
aside the subsequent sale deed executed by
original defendant No.1 in favour of
original defendant Nos.2 and 3, the suit
cannot be permitted to be continued. It is
submitted that as such there is no cause of

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action at all against original defendant

Nos.2 and 3. It is therefore submitted that
even with respect to the said prayer plaint
is required to be rejected under Order VII
Rule 11 (d) of the CPC. Making the above
submissions and relying upon the decisions
of the Hon'ble Supreme Court in the case of
T. Arvindandam vs. T.V. Satyapal and Anr.
reported in (1977)4 S.C.C. 467; Sopan
Sukhdeo Sable Vs. Asstt. Charity
Commissioner reported in (2004)3 S.C.C. 137;
AND in the case of The Chruch of Christ
Charitable Trust and Educational Charitable
Society vs. M/s. Ponniamman Educational
Trust, reported in AIR 2012 SC 3912, it is
requested to dismiss the present appeal.

(10) Heard the learned advocates appearing on

behalf of the respective parties at length.

(11) We have perused and considered the impugned

judgment and order passed by the learned
trial Court. We have also considered and
gone through the documentary evidence
produced by way of paper­book.

(12) At the outset it is required to be noted

that by the impugned judgment and order the
learned trial Court has rejected the plaint

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under Order VII Rule 11 (d) of the CPC on

the ground that the suit is barred by law of
limitation. It is required to be noted that
even application Exh.24 was submitted by
original defendant Nos.2 and 3 to reject the
plaint under Order VII Rule 11 (a) as well
as under VII Rule 11 (d) of the CPC,
however, by the impugned judgment and order
the plaint was rejected under Order VII Rule
11 (d) of the CPC.

(13) It is not in dispute that the original

plaintiffs and original defendant No.6 had
executed registered sale deed dated
02.07.2009 in favour of original defendant
No.1 with respect to land bearing Revenue
Survey No.610, Block No.573, situated at
Mota Varachha, Dist. Surat. Execution of the
said sale deed by the original plaintiffs
and original defendant No.6 is not disputed
by anybody. In the sale deed, particulars
are mentioned with respect to payment of
sale consideration by giving particulars of
cheques. It is also required to be noted
that after the registered sale deed in
favour of original defendant No.1 dated
02.07.2009, which was as such registered
before the Office of Sub­Registrar (Katar
Gam), Surat, original defendant No.1 had

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sold the property in question in favour of

original defendant Nos.2 and 3 by executing
registered sale deed dated 01.04.2013 and on
payment of full sale consideration of
Rs.2,01,00,000/­. That thereafter after a
period of approximately five years from the
date of registered sale deed dated
02.07.2009 and after one year from the date
of execution of registered sale deed dated
01.04.2013 (in favour of original defendant
Nos.2 and 3) the original plaintiffs have
instituted the aforesaid suit for the
reliefs mentioned hereinabove, alleging,
inter alia, that registered sale deed dated
02.07.2009 executed by the original
plaintiffs and original defendant No.6 in
favour of original defendant No.1 is without
making payment of full sale consideration.
At this stage it is required to be noted and
it is not in dispute that till the suit is
instituted in 2014 at no point of time the
original plaintiffs and/or even original
defendant No.6 had made any grievance that
they have not received full consideration
mentioned in the sale deed and for the first
time such allegations are made in the suit
i.e. after approximately five years from the
date of execution of the first sale deed
dated 02.07.2009 executed by the original

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plaintiffs and original defendant No.6, the

appellants­original plaintiffs had
instituted Special Civil Suit No.718 of
2014. Under the circumstances, the suit is
clearly barred by limitation i.e. beyond the
period of three years and, therefore,
considering even the averments made in the
plaint the suit can be said to be barred by
limitation and, therefore, the learned trial
Court has rightly rejected the plaint in
exercise of powers under Order VII Rule 11
(d) of the CPC.

(14) At this stage decisions of Hon'ble Supreme

Court are required to be referred to, which
deal with provisions of Order VII Rule 11
(d) of the CPC.

(i) In the case of T. Arvindandam vs. T.V.

Satyapal and Anr. reported in (1977)4 S.C.C.
467 while considering the very same
provision i.e. Order VII Rule 11 of the CPC
and the decree of trial Court in considering
the such application, the Hon'ble Supreme
Court in para 5 has observed and held as
under:

5. We have not the slightest hesitation in condemning the

petitioner for gross abuse of the process of the court
repeatedly and unrepentently resorted to. From the statement
of the facts found in the judgment of the High Court, it is

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perfectly plain that the suit now pending before the First
Munsif's Court, Bangalore, is a flagrant misuse of the
mercies of the law in receiving plaints. The learned Munsif
must remember that if on a meaningful ­ not formal ­ reading
of the plaint it is manifestly vexatious, and meritless, in
the sense of not disclosing a clear right to sue, he should
exercise his power under Order VII, Rule 11, C.P.C., taking
care to see that the ground mentioned therein is fulfilled.
And, if clever drafting has created the illusion of a cause
of action, nip it in the bud at the first hearing by
examining the party searchingly under Order X , C.P.C. An
activist Judge is the answer to irresponsible law suits.

(ii) In the case of The Chruch of Christ

Charitable Trust and Educational Charitable
Society vs. M/s. Ponniamman Educational
Trust reported in AIR 2012 SC 3912, in para
8 to 10 has observed and held as under:

8. While scrutinizing the plaint averments, it is the bounden

duty of the trial Court to ascertain the materials for cause
of action. The cause of action is a bundle of facts which
taken with the law applicable to them gives the plaintiff the
right to relief against the defendant. Every fact which is
necessary for the plaintiff to prove to enable him to get a
decree should be set out in clear terms. It is worthwhile to
find out the meaning of the words "cause of action". A cause 9
Page 10 of action must include some act done by the defendant
since in the absence of such an act no cause of action can
possibly accrue.

9. In A.B.C. Laminart Pvt. Ltd. and Anr. v. A.P. Agencies,

Salem (1989) 2 SCC 163 : (AIR 1989 SC 1239), this Court
explained the meaning of "cause of action" as follows:
12. A cause of action means every fact, which if
traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of
the court. In other words, it is a bundle of facts
which taken with the law applicable to them gives the
plaintiff a right to relief against the defendant. It
must include some act done by the defendant since in
the absence of such an act no cause of action can
possibly accrue. It is not limited to the actual
infringement of the right sued on but includes all the
material facts on which it is founded. It does not
comprise evidence necessary to prove such facts, but
every fact necessary for the plaintiff to prove to
enable him to obtain a decree. Everything which if not
proved would give the defendant a right to immediate
judgment must be part of the cause of action. But it
has no relation whatever to the defence which may be

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set up by the defendant nor does it depend upon the
character of the relief prayed for by the plaintiff."

10. It is useful to refer the judgment in Bloom Dekor Ltd.

v. Subhash Himatlal Desai and Ors. (1994) 6 SCC 322, wherein
a three Judge Bench of this Court held as under:

28. By "cause of action" it is meant every fact, which,

if traversed, it would be necessary for the plaintiff
to prove in order to support his right to a judgment of
the Court, (Cooke v. Gill, 1873 LR 8 CP 107). In other
words, a bundle of facts which it is necessary for the
plaintiff to prove in order to succeed in the suit."

It is mandatory that in order to get relief, the plaintiff

has to aver all material facts. In other words, it is
necessary for the plaintiff to aver and prove in order to
succeed in the suit.”

(1) Considering the fact that the suit is barred

by law of limitation, the learned trial
Court has rightly rejected the plaint under
Order VII Rule 11 (d) of the CPC.

(2) Now so far as the submissions on behalf of

the appellants­original plaintiffs that the
suit in respect of the subsequent sale deed
executed by original defendant No.1 in
favour of original defendant Nos.2 and 3
dated 01.04.2013 can be said to be within
the period of limitation is concerned, it is
required to be noted that the suit in
respect of the first sale deed dated
02.07.2009 executed by original defendant
No.1 and original defendant No.6 in favour
of original defendant No.1 is held to be
barred by law of limitation. Under the
circumstances, with respect to the

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subsequent sale deed executed by original

defendant No.1, the suit cannot be permitted
to be continued. At this stage it is
required to be noted that the entire
averments and allegations in the suit are
only against original defendant No.1 and
there are no allegations at all against
original defendant Nos.2 and 3. There is no
privity of contract between the original
plaintiffs and original defendant Nos.2 and
3. Under the circumstances, there cannot be
any cause of action against original
defendant Nos.2 and 3. Merely by clever
drafting and challenging the subsequent sale
deed, for which the suit can be said to be
within the limitation, the substantive
relief which is barred by law of limitation,
that substantive relief against original
defendant No.1 cannot be permitted to be
prayed within the period of limitation.
Under the circumstances, the aforesaid
submissions cannot be accepted.

(3) Even otherwise it is required to be noted

that the original plaintiffs are not
disputing execution of the registered sale
deed by them in favour of original defendant
No.1. Particulars with respect to payment by
cheques and the amount are mentioned in the

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sale deed. In the sale deed it is

specifically admitted by the original
plaintiffs and original defendant No.6 that
they have received full sale consideration.
Be that it may, when the execution of the
sale deed by the original plaintiffs and
original defendant No.6 is not disputed and
the sale deed executed by them in favour of
original defendant No.1 has been registered
with the Office of Sub­Registrar, the sale
deed cannot be declared void and/or illegal
and/or ineffective. If at all there is any
remedy available to the original plaintiffs
the same shall be to institute a suit for
recovery for the alleged non­payment of the
balance sale consideration. However, on the
ground stated in the plaint, the sale deed
in favour of original defendant No.1 cannot
be declared ineffective and/or illegal
and/or void. Under the circumstances, when
the suit is found to be barred by law of
limitation, the learned trial Court has
rightly rejected the plaint under Order VII
Rule 11 (d) of the CPC.

(4) In view of the above and for the reasons

stated hereinabove, we see no reason to
interfere with the judgment and order dated
12.08.2016 passed by the learned trial Court

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rejecting the plaint under Order VII Rule 11

(d) of the CPC, more particularly after the
first registered sale deed dated 02.07.2009
executed in favour of original defendant
No.1, subsequently original defendant No.1
had already sold the property in question in
favour of original defendant Nos.2 and 3,
who are as such can be said to be the bona
fide purchasers, by way of registered sale
deed dated 01.04.2013 for a sale
consideration of Rs.2,01,00,000/­.

(5) Accordingly, the appeal deserves to be

dismissed and is accordingly dismissed.

(6) In view of dismissal of the main first

appeal, civil application for stay stands
disposed of accordingly.
Sd/­
[M.R.SHAH, J]

Sd/­
[A.S.SUPEHIA, J]

Bhavesh­[PPS]*

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