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Judgment
A.J. Shastri, J
The present Civil Revision Application under Section 115 read with Section 151 of the Code of Civil Procedure, is filed by the applicant â€" original
respondent No.2 for challenging the legality and validity of an order dated 7.5.2019 passed below Exh.112 in Civil Misc. Application No.32 of 2012, by
the learned 2nd Additional Senior Civil Judge, Anand.
The case, in brief, is that applicant â€" Smt.Harshika is the widow of late Shashikant Parshottambhai Patel and said Shashikant Parshottambhai
Patel had earlier married to the mother of respondent, namely, Renukaben. Out of the said wedlock with Renukaben, late Shashikant Parshottambhai
Patel had two children; one named as Bhavin and another daughter named as Bhumiben, who are respondent Nos.1 and 2 herein. It is the say of the
applicant that since about 30 years, said Shashikant Parshottambhai Patel was not residing with earlier wife i.e. with mother of respondents herein on
account of internal domestic issues and was residing with present applicant in the house of applicant with family since many years. In the year 2006,
as per the say of the applicant, one contract of friendship came to be executed by the present applicant with late Shashikant Parshottambhai Patel on
27.10.2006, in which it was asserted that since about 55 years, both are residing as husband and wife, during the lifetime late Shashikant
Parshottambhai Patel generated movable as well as immovable properties and with regard to that, the respondents raised the dispute with the
assistance of mother Renukaben. In between, settlement took place with the intervention of Senior Advocate as well and the settlement was executed
on 2.6.2011. It was declared that after receiving the amount of property mentioned in the MoU, the son shall not be entitled to any amount either from
share in the property or maintenance and will not file any suit or avail any legal course to claim anything. The MoU having been complied with, but
then on 17.4.2012, said Shri Shashikant Parshottambhai Patel expired and in response to the MoU cum family settlement , it was agreed between the
parties that the mother of the respondents would take a consent divorce under the instructions and suggestion by the Senior Advocate and, therefore,
an application was submitted under Section 13(1)(b) of the Hindu Marriage Act before the competent court and ultimately, said application came to be
allowed by learned Additional Senior Civil Judge, Anand on 2.4.2012 and thus, divorce took place of the mother and father of respondents herein, in
view of the MoU.
2.1 It is further the case of the applicant that immediately after the decree of divorce, on 5.42012 late Shashikant Parshottambhai Patel married to
present applicant as per the Hindu rites and ceremony and on the same day, a Will was prepared as per the instruction of the Senior Advocate as
referred to above. Unfortunately, on 8.4.2012, said Shri Shashikant Parshottambhai Patel suffered with brain stroke and went into unconsciousness
and ultimately, died on 17.4.2012. According to the applicant, even the amount of Rs.5000/Â was paid for registration of marriage on 5.4.2012 to one
Advocate â€" Shri Vanrajsinh Raul. However, on account of brain stroke, said Shri Shashikant Parshottambhai Patel was required to be shifted to
Krishna Hospital at Anand. According to the applicant, even Besna ceremony was organized on 22.4.2012 at the residence of the applicant. An
allegation was leveled that even for operating the deceased with high risk anesthesia, even the consent of wife was taken. Pursuant to the marriage
which took place on 5.4.2012, even certificate of registration was issued by the competent authority and admittedly, in view of the MoU, the
respondent No.1 had tendered his resignation as Director as well as Managing Director of Suryadeep Alloy Steel Casting Pvt. Ltd. The resignation
was accepted in a meeting of the company on 3.6.2011 and it was also decided and resolved in the meeting that respondent No.1 herein is relieved
from his personal guarantee for cash credit and term loan facility of the company. Even Form No.32 had also been filled in the office of the Registrar
of Companies and as such, according to the applicant, with free will, all the parties, pursuant to the MoU, have accepted the terms which were arrived
at between them. By virtue of execution of Will dated 5.4.2012, the deceased expressed his wish to bequeath his properties in favour of present
applicant. But the respondent No.1 herein filed an application for seeking probate before the learned Principal Senior Civil Judge and the said probate
application is pending before the concerned competent court.
2.2 It is further the case of the applicant that respondent No.1, according to the applicant, then has shown his colour to grab the movable and
immovable properties which were originally owned by late Shri Shashikant Parshottambhai Patel and also initiated various proceedings to take undue
advantage of sad demise of Shashikant Parshottambhai Patel. In short, according to the applicant, the marriage has taken place with deceased and as
a lawful wife, in response to Will as well, the respondents have no right to claim anything except which is given under the Will to the respondents. But,
with an illÂmotive, the respondent No.1 herein filed the Civil Suit No.221 of 2014 for seeking declaration and injunction, in which the execution of Will
as well as the marriage registration and the certificate came to be challenged. The respondent No.1 also filed Misc. Civil Application No.32 of 2012
even for getting succession certificate.
2.3 It is further the case of the applicant that said Civil Suit No.221 of 2014, wherein the Will came to be challenged as well as registration certificate,
came to be dismissed for nonÂprosecution on 31.7.2017, since the respondent No.1 did not care to prosecute the suit further. On the other hand, the
respondent No.1 started filing applications before the different Authorities including the learned Chief District Health Officer, Deputy Registrar
General (Marriage Registration), Taluka Development Officer as well as other authorities for cancellation of registration of marriage of present
applicant with late Shri Shashikant Parshottambhai Patel, by raising multiple pleas. On 20.5.2013, the Registrar General (Marriage Registration) and
Additional Director informed respondent No.1 that for that relief, the respondent No.1 may approach the competent civil court. Said communication is
also attached with the petition compilation. Since the authority did not consider the case of respondent No.3, he appears to have approached this Court
by filing SCA No.11750 of 2013, in which after considering the conduct of respondent No.1, on 13.11.2014 the petition came to be dismissed. Feeling
aggrieved by the said order of the coordinate bench of this Court, Letters Patent Appeal came to be filed being LPA No.1359 of 2014. However, the
Division Bench also did not entertain the said LPA and clearly opined that for ventilating said grievance, the applicant i.e. respondent No.1 has to
approach the civil court.
2.4 It is further the case of the applicant that despite the fact that all the parties have agreed to abide by the MoU dated 2.6.2018 and it was acted till
the death of late Shri Shashikant Parshottambhai Patel, but, still however, with an illÂmotive, according to the applicant, even an application under
Section 24 of the CPC came to be submitted and simultaneously, Succession Application No.32 of 2012 was also dealt with by respondent No.1 by
submitting application under Order 26 Rule 10A of the CPC. Said application was dismissed vide order dated 7.12.2015 which was again challenged
by respondent No.1 by way of filing SCA No.2096 of 2016. But since the respondents herein have suppressed the material fact with regard to the
dismissal of Civil Suit No.221 of 2014, said petition came to be disposed of on 19.8.2018, wherein it was ordered that Will dated 5.4.2012 was ordered
to be sent to FSL and consequently, directions were issued to the lower court. It is further asserted that present applicant, in the aforesaid background
of fact, appears to have submitted an application under Order 7 Rule 11 of the CPC mainly on the premise that succession application No.32 of 2012
is not maintainable. A reply came to be submitted by the respondents herein. But then there are other proceedings parallel going on with regard to the
SCA No.19636 of 2018 which was pending adjudication. On 7.5.2019, the learned trial Judge was pleased to reject the application which is filed in
Succession Application No.32 of 2012, without assigning any cogent reason or without giving any clarification with regard to the written arguments
and the documents and it is this order dated 7.5.2019, whereby the request of rejection of Succession Application i.e. Civil Misc. Application No.32 of
2012, is made the subject matter of present Civil Revision Application under Section 115 of the CPC.
Mr.S.I.Nanavati, learned Senior Advocate appearing for Nanavati & Nanavati for the respondents, at the outset, has raised a preliminary
contention with regard to the maintainability of applicant’s application under Order 7 Rule 11 of the CPC in Succession Application i.e. Civil Misc.
Application No.32 of 2012. Since the same is not to be treated as substantive suit, ofÂcourse can be dealt with as if it’s a suit proceeding. But in a
literal form, said Civil Misc. Application No.32 of 2012 cannot be said to be plaint and, therefore, Order 7 Rule 11 has no role to play in the said
proceeding and, therefore, no error is committed.
Now, to this preliminary objection raised by Mr.S.I.Nanavati, learned Senior Advocate, Mr.Anshin Desai, learned Senior Advocate appearing with
Mr.Satyam Chhaya, learned advocate for the applicant, has submitted that by virtue of effect of Sections 371 as well as 372, the procedure which is
adopted is akin to civil proceedings and, therefore, by virtue of Section 384(2)(3),with full vigor, the provisions which are contained in the Code of Civil
Procedure are made applicable and as such, the civil court has certainly got the jurisdiction. But then Mr.Anshin Desai, learned Senior Advocate, has
submitted that this issue may be dealt with along with main Civil Revision Application as even on merit also, the circumstances deserve to be
examined. As a result of this, the main revision petition is taken up for adjudication.
4.1 Mr.Anshin Desai, learned Senior Advocate, has vehemently contended that deceased Shashikant Parshottambhai Patel was residing as husband
with applicant over a period of 25 years and there was a categorical Will executed on 5.4.2012 and as such, since till death of late Shri Shashikant
Parshottambhai Patel, the parties to the present proceedings have acted according to the terms of MoU, the application which has been submitted by
respondent No.1 itself is not maintainable and as such, the learned Judge ought to have exercised the jurisdiction vested in law. It has further been
submitted that chronology of events would clearly suggest that even the divorce has also taken place by submitting proceedings under Section 13(1)
(B) of the Hindu Marriage Act and as such, it is nothing but an illÂmotive on the part of respondents to excavate something from movable as well as
immovable properties by any means and this litigation which has been generated is nothing but a clear abuse of process and exÂfacie not being
tenable, the jurisdiction under Order 7 Rule 11 of the CPC ought to have been exercised. It has further been submitted that the terms of MoU have
been deduced in writing between the parties and in presence of all and there was no other valid reason to distract the parties from such terms. As a
result of this, this institution of proceeding is not tenable in the eye of law. A further fact is also submitted that only with a view to create an
atmosphere of distrust, one after other applications and submit came to be filed and after lodging the suit, as stated earlier, the suit itself as being
dismissed for nonÂprosecution and apart from this, if the suit to be restored then the same is not maintainable. The learned Judge has committed a
serious error in not considering the request of the applicant under Order 7 Rule 11 of the CPC. For the purpose of substantiating this submission,
Mr.Anshin Desai, learned Senior Advocate, has referred to and relied upon few decisions; (i) N.V.Srinivasa Murthy & Ors. v. Mariyamma (Dead) by
Proposed LRS. & Others., reported in (2005) 5 SCC 548 and (ii) Soumitra Kumar Sen v. Shyamal Kumar Sen & Ors., reported in (2018) 5 SCC 644
(ii) Sirinabai D Daruwajla v. Edalji Dhanjisha Anklesharia, reported in 1975 GLR 204 and (iv) Bablu Mandal v. Vandana Bhowmik, reported in 2007
(0) AIJÂMP 1417947 and thereby, has submitted that request for rejection ought to have been granted. It has been contended that even the reasons
which are assigned by the court below are also not cogent enough to substantiate the ultimate conclusion. As a result of this, there is hardly any
reason for allowing such conclusion as perverse, to be sustainable in the eye of law.
4.2 It has further been submitted that even plain reading of the averments contained in Civil Misc. Application No.32 of 2012, no case is made out and,
therefore, this is a fit case to exercise the jurisdiction under Order 7 Rule 11 of the CPC. Additionally, it has been contended that this application is hit
by Section 11 as well as Order 2 Rule 2 of CPC and, therefore also, in the absence of any legal background available to the retainability of the
litigation generated by them, there is hardly any reason to precipitate the same any further. Learned Senior Advocate has then drawn the attention to
the various documents which are attached to the petition compilation and has requested the Court to set aside the impugned order and grant the relief
as prayed for in the present Civil Revision Application.
4.3 It has further been contended that tendnecy on the part of respondents is just to entangle the properties in litigation and this illÂmotive may not be
allowed to be processed any further. The learned Judge ought to have appreciated the very objection of Order 7 Rule 11 of the CPC which is aimed
at curbing frivolous litigation and glaring example, according to learned Senior Advocate, to set at naught the present proceedings i.e. Civil Misc.
Application No.32 of 2012.
4.4 It has further been submitted that the application which has been submitted, the averements contained therein are sufficient enough to hold that
Civil Misc. Application No.32 of 2012 is not maintainable and, therefore, this attempt to drag on the litigation be curbed at the threshold itself. It has
further been submitted that in view of the family settlement, neither the respondents herein nor the mother of the respondents at any time raised any
dispute and further, since concocted documents have been created, the Civil Misc. Application No.32 of 2012 deserves to be rejected. However, be
that as it may, the finding which has been arrived at by the court below is not just and proper. Resultantly, the impugned order be set aside. Even the
written arguments which were tendered have not been properly construed and dealt with and that being so, the order in question be set aside. No
other submissions have been made.
To meet with the stand taken by Mr.Anshin Desai, learned Senior Advocate, Mr.S.I.Nanavati, learned Senior Advocate for Nanavati & Nanavati,
appearing on behalf of the respondents, has submitted that no clear facts are brought to the notice of the Court by the applicant and further, there is no
question of applying either Section 11 or Order 2 Rule 2 of the CPC. It has further been contended that Civil Misc. Application is merely a summary
proceeding to be dealt with like suit, but this would not mean that it is to be construed as a suit itself and, therefore, the application since not to be
treated as plaint, there is hardly any question of applying Order 7 Rule 11 of CPC to such proceedings. It has further been submitted that apart from
this, there is a gross delay on the part of applicant to apply under Order 7 Rule 11 as well as Section 11 of CPC. The Civil Misc. Application No.32 of
2012 is submitted in the year 2012 and this application has been submitted only on 27.11.2018 and, therefore, on this count of delay only, the
application under Order 37 Rule 11 is not to be accepted and rightly the same has been dismissed. Learned Senior Advocate has further submitted
that Order 7 Rule 11(d) is a stringent provision, as a result of this such provision cannot be exercised so lightly by the court as it has got the effect of
throttling the litigation at the initial stage and, therefore, such power to be exercised sparingly and not in a routine manner.
5.1 Mr.S.I.Nanavati, learned Senior Advocate, has further submitted that there are questionable circumstance very seriously visible on the record;
firstly that MoU is said to have been executed on 2.6.2011 and on 2.4.2012, a divorce is taking place and immediately thereafter on 5.4.2012, the
marriage certificate is being issued under Section 5 of the Gujarat Marriage Act,2006 and simultaneously, on that very day, the Will is being executed.
This sequence of events are raising serious doubt which requires a factual detail to be examined. It has further been submitted that a bare perusal of
movable and immovable properties and the signature contained therein is not inspiring any confidence and additionally, the Will which has been
executed is also not appears to be written by late Shri Shashikant Parshottambhai Patel and hence, genuineness thereof is also seriously at stake.
Additionally, it has further been submitted that the Will in question is in Gujarati, whereas late Shri Shashikant Parshottambhai Patel was quite literate
and used to have English language at command and the Will which is executed is in Gujarati language. Even the signatures which are to be seen from
the comparable documents, it would apparently look like forged signature and that being the position, at least this factual background which is to be
examined, the proceedings initiated are not possible to be throttled for its proper adjudication. It is settled position of law that whenever any element of
fact is to be examined, then Order 7 Rule 11 normally not to be insisted upon. It has further been submitted that there is no question of applying
Section 11 or Order 2 Rule 2 of the CPC as the civil suit is of a subsequent year and further, the dismissal of the suit is for default and not on merit
and, therefore, by virtue of settled position of law, the disposal of the suit cannot be used as lever to contend the plea of resÂjudicata and dismissal of
the proceeding for default cannot construe or attract the principle of resÂjudicata and as such, in a situation like this, a contention is not available to
the applicant.
5.2 Additionally, it has further been submitted that death has taken place on 17.4.2012 and the registration of marriage is taking place after the death
and thereto, with the signature of the applicant alone and though under the provision of Right to Information Act, yet the documents have not been
demanded, though sought for, a fraud is practiced by applicant in respect of registration of her marriage with late Shri Shashikant Parshottambhai
Patel and such registration is nothing but an evil design to grab the property of late Shri Shashikant Parshottambhai Patel and to thwart the legitimate
rights of present respondents. Learned Senior Advocate has further submitted that in the civil suit proceedings i.e. Special Civil Suit No.221 of 2014,
the validity of marriage was questioned, the Division Bench of this Court on 9.12.2014 has opined that proceedings of succession certificate is meant
for the mode of succession to be finalized. But then apparently, this Civil Misc. Application No.32 of 2012 has processed further and even an order is
also passed on 3.9.2015, wherein for the purpose of sending the Will to handÂwriting expert, necessary process was ordered to be carried out.
5.3 Additionally, it has also been contended by the learned Senior Advocate that there are various orders passed by this Court with regard to the
related controversy about challenge to the Will and even a petition being SCA No.2096 of 2016 is also filed, wherein on 16.2.2016, the Court issued
notice by granting interim relief and then, an order at Exh.49 which was passed on 17.12.2015 in Civil Misc. Application No.32 of 2012, the Court
while dealing with said order, issued direction to the effect which is incorporated in Para.7 which will be reproduced at an appropriate stage of the
present order and as such, when such sequence of events are indicating that Civil Misc. Application No.32 of 2012 which has processed at an
advanced stage, now to allow the applicant to insist upon this pending application would tantamount to allowing the applicant to evade the process
which has already commenced of adjudication. So, at this stage of the proceeding, there is hardly any reason to allow the applicant to contend anything
on rejection of application which is not a plaint. Under this set of circumstance, no case is made out by the applicant which may call for any
interference in revisional jurisdiction.
5.4 To substantiate the aforesaid contentions, Mr.S.I.Nanavati, learned Senior Advocate, has relied upon the decisions of the Apex Court as well as
other High Courts; (i) Chhotaben & Anr. v. Kiritbhai Jalkrushnabhai Thakkar & Ors., reported in (2018) 6 SCC 422 (ii) Plaza Garments v. Textile
Apparels, reported in 2002 (62) DRJ 773 and contended that this is not a fit case in which, in respectful submission of the respondents, the powers
under Order 7 Rule 11 are to be exercised. Therefore, irrespective of any technicality at this stage to allow the applicant to throttle the adjudicating
process of Civil Misc. Application No.32 of 2012, would tantamount to serious prejudice the legitimate right of respondents as well as hardly fair to the
judicial forum which is adjudicating the application. As a result of this, the revision petition being devoid of merit, the same may be dismissed. Learned
Senior Advocate has further submitted that the order in question is a well reasoned order, not reflecting any violation of contingencies which are
prescribed in Section 115 of the CPC to call for any interference and ultimately, request is made to dismiss the revision petition. No other submissions
have been made.
Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that few
circumstances are not possible to be unnoticed by the Court.
(1) The application under Order 7 Rule 11 read with Section 11 of the CPC, appears to have been submitted only on 27.11.2018 and prior thereto, it
appears that the applicant has participated in such adjudicating by raising several contentions in previous proceedings. It further appears that Civil
Misc. Application No.32 of 2012 is submitted in the year 2012, whereas after almost a period of 6 years, this application is sought to be processed and,
therefore, there is a delay of 6 years. OfÂcourse, law is absolutely clear that this application under Order 7 Rule 11 of CPC can be submitted at any
stage of the proceeding, but generally when the adjudicating process has commenced wherein the factual details are to be examined, this stringent
power normally not be exercised as it has got the effect of throttling the process of adjudication, without allowing the competent forum and the parties
to examine the issue.
(2) It further appears that there is a serious rift and grievance between the parties with regard to the execution of Will, with regard to the marriage
having taken place and with regard to the conflict of legitimate right of applicant visÂaÂvis of respondents herein. It is submitted that the MoU is
executed on 2.6.2011 and then, the divorce is taking place on 2.4.2012 and thereafter, within 3 days, the marriage is taking place on 5.4.2012 and the
said marriage is sought to be registered after the death of late Shri Shashikant Parshottambhai Patel, who died on 17.4.2012 and after the marriage is
allegedly taking place on 5.4.2012, on 8.4.2012 i.e. within 3 to 4 days, said late Shri Shashikant Parshottambhai Patel is said to have sustained brain
stroke and became unconscious and as such, this sequence of events are also so abrupt. As a result of this, the allegation and counter allegation about
implementation of MoU as well as about execution of Will are the circumstances which require proper examination. Further, the Memorandum of
Marriage which is produced on pageÂ108 is also clearly reflecting that the same appears to have been submitted late; the date of marriage is
5.4.2012. In column No.3(b), against his age, instead of date, the word ‘expired’ is incorporated and so far as the applicant is concerned, the
signature of bride column indicates the date which is ‘25.4.2012’. In column No.7, priest has also put his signature on 25.4.2012. Even the
witness has also signed on 25.4.2012. These dates which are appearing on Memorandum of Marriage is selfÂexplanatory which requires validity to be
examined at length.
(3) Further, it appears that there is a serious grievance with regard to the signature of late Shri Shashikant Parshottambhai Patel. The signature which
is reflecting on pageÂ57 if to be compared with the Will which is executed in Gujarati, is apparently not tallied. So, if pageÂ166 of petition compilation
if to be visualized and compared with pageÂ57 signature, there is apparent dissimilarity and, therefore, the allegation with regard to the execution and
validity of Will is concerned, the same deserves close scrutiny. Additionally, the contents of Will are also such that said late Shri Shashikant
Parshottambhai Patel allowed the Will to be executed by somebody and by writing that it is with volition, but when the execution itself is at serious
stake, no circumstance to be prejudged at this stage of the proceeding.
(4) Additionally, it further appears that the coordinate bench of this Court on 18.9.2018 in SCA No.2096 of 2016, has dealt with the issue which arose
in an application Exh.49 in Civil Misc. Application No.32 of 2012 about sending the Will to handÂwriting expert. But then with consensus it was
directed to the court below to send the document of Will dated 5.4.2012 for examining and analyzing handÂwriting and signature to the FSL and then,
the court below shall pass necessary order and accordingly, the said petition stood disposed of. Para.7 since relevant is reproduced hereinafter :
“7. The petition deserves to be disposed of accordingly. As a result, impugned order dated 07th December, 2015 passed by learned 2nd Additional
Senior Civil Judge, Anand, below Exh.49 in Civil Miscellaneous Application No.33 of 2012 rejecting the prayer of the petitioner to send the Will in
question to the hand writing expert, is hereby set aside. Based on the joint submission of the parties and the broad consensus arrived at between the
parties as noted above, it is directed to the court below to pass an order to send the document of Will dated 05th April, 2012 for examining and
analysing the handwriting and the signature to the Forensic Science Laboratory. The court below shall pass necessary order to this effect within three
days from the date of receipt of this order. The petition stands disposed in the aforesaid terms.â€
(5) Even, it appears that in Civil Misc. Application No.32 of 2012 itself, an application is submitted under Order 26 Rule 10A which is dealt with by
coordinate bench of this Court and that application was filed in that very proceedings which are now sought to be rejected by resorting to Order 7
Rule 11 of CPC. So, here is a case that apparently, it appears that after putting Civil Misc. Application No.32 of 2012 into specific motion, then at
convenient time it appears that this application of November,2018 is tried to be pressed into service, so that all the aforesaid eventualities can be given
a goÂbye. This submission of learned Senior Advocate for the respondents is generating confidence. Additionally, it further appears that only plaint
will have to be seen at the time of exercising jurisdiction under Order 7 Rule 11, whereas the documents which are sought to be relied upon by the
applicant are not possible to be taken into consideration, hence, rightly not dealt with by the Court as it appears. Further, the reason which has been
assigned about resÂjudicata being not applicable and provision of Order 2 Rule 2 of CPC has no bar, the learned Judge upon true examination has
rightly undertaken the exercise and come to the conclusion. This is more so in view of the fact that principle of resÂjudicata or abandonment of plea
will have to be examined on the proper factual background. Undisputedly, the civil suit which is even subsequent to this Civil Misc. Application, but the
said civil suit is also merely dismissed for default and not decided on merit. As a result of this, the question of applying Section 11 will have not legs to
stand and, therefore also, the submissions made by learned Senior Advocate appearing on behalf of the applicant are not possible to be digested.
(6) Additionally, it further appears that no doubt, the succession application once contested are to be dealt with as if the said proceedings are of civil
suit. But then here is a case in which this preliminary issue even if not examined, the case is not made out by the applicant to allow Civil Misc.
Application No.32 of 2012 to be disposed of, by resorting to Order 7 Rule 11(d) and, therefore, this question is left open to be decided in an
appropriate proceedings. Apparently, the contentions which have been raised in the application are not justifying the request of rejecting Civil Misc.
Application No.32 of 2012 by exercising jurisdiction under Order 7 Rule 11 nor to be held as barred by Section 11 or Order 2 Rule 2 of CPC.
Apart from this, the basic contentions have been dealt with by the court below and, therefore, the question of nonÂapplication of mind is out of
place to be allowed to be agitated and further, when after due application of mind, the discretion which has been exercised by the court below and
arrived at a particular conclusion, sitting in revisional jurisdiction, in the absence of any material irregularity or in the absence of any of the condition
contained in Section 115 of the CPC, the revisional court has hardly any scope of interference and substitute the finding. Here is a case in which this
Court is of the opinion that none of the conditions stipulated under Section 115 of the CPC are established by the applicant for questioning the validity
of the impugned order. The scope of revisional jurisdiction is well defined by the Apex Court. Since the said decisions and the observations contained
therein are taken in aid by this Court to arrive at an ultimate conclusion, the Court deems it proper to reproduce the same hereinafter :
(1) In case of Rukmini Amma Saradamma v. Kallyani Sulochana & Ors., reported in AIR 1993 SC 1616. The observations made in Para.21 since
relevant is quoted, thus;
“21. We are afraid this approach of the High Court is wrong. Even the wider language of Section 20 of the Act cannot enable the High Court to
act as a first or a second court of appeal. Otherwise the distinction between appellate and revisional jurisdiction will get obliterated. Hence, the High
Court was not right in reappreciating the entire evidence both oral or documentary in the light of the Commissioner's report (Ext. C1 and C2 mahazar).
In our considered view, the High Court had travelled far beyond the revisional jurisdiction. Even by the presence of the word ""propriety"" it cannot
mean that there could be a reappreciation of evidence. Of course, the revisional court can come to a different conclusion but not on a reappreciation
of evidence; on the contrary, by confining itself to legality, regularity and propriety of the order impugned before it. Therefore, we are unable to agree
with the reasoning of the High Court with reference to the exercise of revisional jurisdiction.â€
(2) In case of Ambadas Khanduji Shinde & Ors. v. Ashok Sadashiv Mamurkar & Ors., reported AIR 2017 SC 2527. The observations made in
Para.13 since relevant is quoted, thus;
“13. Apart from the factual aspect, order lacks merit on the ground of jurisdiction. The High Court cannot interfere with the concurrent factual
findings while exercising jurisdiction under Section 115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is
restricted to cases of illegal or irregular exercise by the subordinate courts. Under Section 115 of the CPC, it is not open for the High Court to correct
errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within
the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of
the trial court.â€
Now, in the context of this, the perusal of the decisions which have been pressed into service by the applicant herein if to be looked into, a
conscious reading of the same would indicate that in the different factual background, the decisions relied upon are not possible to be applied as
straitjacket formula. The decision which is reported in 1975 GLR 204 appears to have been relied upon is continuation of proceedings under the
Succession Act visÂaÂvis the applicability of Code of Civil Procedure. Essentially, the said decision was dealt with a fact situation of an issue which
is altogether different from the present one and, therefore, the observations which have been made by the court if in a different fact situation, the
same cannot be applied as a precedent mechanically, in view of the fact that facts if are different, then it will make a world of difference in applying
the precedent.
Yet another decision which is taken into consideration is a decision in case of N.V.Srinivasa Murthy (Supra), wherein also the same is based upon
the provision contained under Order 2 Rule 2 of CPC. But then, again here is a case in which the civil suit got dismissed for default and not decided on
merit, whereas in this case which has been cited, the original plaintiff â€" appellant was seeking permanent injunction against the defendants from
interference of possession of the suit property in earlier suit and the case was based upon oral agreement for re conveyance of the suit property and
the respondent had acquired the title to suit property which controversy has generated the litigation and in that background, the Apex Court was of the
view that since the cause of action would reflect, the High Court does not seem to be right in rejecting the plaint on the ground of nonÂavailability of
cause of action. On the contrary, the critical examination was undertaken. Now, in that background, the Apex Court has observed that if clever
drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order
On the contrary, this is suggesting that if there is illusion of cause of action reflecting, then at the first hearing itself this power deserves to be
exercised, whereas herein the instant case, Civil Misc. Application No.32 of 2012, on account of multiple grievances as one after the other generated
various steps in the litigation and, therefore, in this peculiar background of fact, it appears to this Court that the decision which has been relied upon
cannot be mechanically applied, otherwise the same tantamounts to be throttling the adjudicating process, without any just reason.
So far as the preliminary issue which has been raised by Mr.S.I.Nanavati, learned Senior Advocate, is concerned, Mr.Anshin Desai, learned
Senior Advocate has drawn the attention to one of the decisions delivered by the Madhya Pradesh High Court in case of Bablu Mandal (Supra) and
has contended that when in a proceedings under the Succession Act, an application under Order 9 Rule 13 of CPC is processed for limited purpose
read with Section 263 of the Succession Act, the jurisdiction can be invoked. But then the judgment is not clearly suggesting that for rejection of the
whole proceedings, Order 7 Rule 11 of CPC can be made applicable and, therefore, since in the main proceedings itself, the merit is not generating
any confidence, the Court, without much dwelling into this aspect, is of the considered opinion that no case is made out by the applicant to call for any
interference. In view of the aforesaid discussion, the judgments which have been pressed into service are not of any assistance to the applicant.
So far as the judgments which have been relied upon by Mr.S.I.Nanavati, learned Senior Advocate, is concerned, the first judgment which has
been relied upon is a decision in case of Plaza Garments (Supra), in which in an arbitration proceedings under Section 9, whether the provision of
Order 7 Rule 11 of CPC can be made applicable or not. Now, in that controversy, the Delhi High Court has held in Para.2 that by no stretch of
imagination, application under Section 7 of the Act can be placed at the pedestal of a suit or even substantive proceedings and as such the provision of
Order 7 Rule 11 of CPC are not at all applicable. Resultantly, by relying upon once of the decisions of the Apex Court, the Delhi High Court has
disposed of the application.
Yet another decision of the Apex Court which is relied upon in case of Chhotaben & Anr. v. Kiritbhai Jalkrushnabhai Thakkar & Ors., reported in
(2018) 6 SCC 422, in which the Apex Court has clearly propounded in Para.15 that in the context of application under Order 7 Rule 11 of the CPC,
only averments contained in the plaint are to be examined and defence available or plea taken by them or written statement or any application cannot
be the base to decide application under Order 7 Rule 11 of the CPC and this recent pronouncement is indicating clearly that while determining the
application under Order 7 Rule 11 of the CPC, the averments contained in the plaint only will have to be looked into. The observations contained in
Para.15 since relevant, are reproduced hereinafter :
“15. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in
the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or
any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane.
It is common ground that the registered sale deed is dated 18th October, 1996. The limitation to challenge the registered sale deed ordinarily would
start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had
no knowledge whatsoever regarding execution of such sale deed by their brothers  original defendant Nos.1 & 2, in favour of Jaikrishnabhai
Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the
registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days
prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession
and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they
realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and
filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the
execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by
respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.â€
12.1 The aforesaid observations have been made by the Apex Court by considering several other decisions and as such, since the Court is examining
as to whether this is a fit case to exercise the power under Order 7 Rule 11 of the CPC and the application submitted by the applicant deserves any
consideration, the Court is of the clear opinion that order dated 7.5.2019 is not reflecting any infirmity nor reflecting any circumstance which calls for
interference in revision jurisdiction under Section 115 of the CPC. Hence, the Civil Revision Application being devoid of merit, deserves to be
dismissed.
On the contrary, the Court is of the opinion that since Civil Misc. Application No.32 of 2012 has now taken too much time on account of this
interÂse litigation as it appears, the same shall be dealt with as expeditiously as possible by the concerned court and with this observations, the present
Civil Revision Application stands dismissed with no order as to costs. Notice is discharged.