Vraj Vihar (Bansari) Association vs Alpaben and 4 Ors.

M.D. Shah, J.—Special Civil Applications Nos. 317 of 2012 and 319 of 2013 challenge common order dated 11-12-2012 passed below application Ex.376 in Special Civil Suit No. 100 of 2001 and application Ex.387 in Special Civil Suit No. 49 of 2003 respectively by the learned Principal Senior Civil Judge, Kalol. As common questions of facts and law are involved in both these petitions, they were heard together and are being disposed of by this common order.

Facts in short leading to the filing of the present petitions inter alia are that the respondents No. 1 and 2-original plaintiffs of Special Civil Application No. 317 of 2012 instituted Special Civil Suit No. 100 of 2001 against original defendants in the Court of learned Civil Judge (S.D.), Mehsana, Camp at Kalol, seeking a declaration and permanent injunction that defendant Nos. 1 and 2 have no right, title and interest in respect of land admeasuring 101111 sq.mtrs. of Block No. 284 of Village Rakanpur, Taluka Kalol, and that the registered sale deeds dated 13-10-1999 in respect of suit lands executed by defendant No. 3 in favour of defendant No. 1 and the subsequent sale deeds dated 8-1-2001 in respect of suit lands executed by defendant No. 1 in favour of defendant No. 4 are illegal, null and void and also that if defendant No. 4 is found to be in possession of the suit lands, plaintiffs be given physical possession of suit lands in proportion to their share by partition.

Thereafter, defendant No. 3 of Special Civil Suit No. 100 of 2001 filed Special Civil Suit No. 49 of 2003 in the Court of Civil Judge (S.D.), Mehsana, Camp at Kalol, against the plaintiffs and defendant No. 4 seeking a declaration and permanent injunction to the effect that seven registered sale deeds dated 13th October 1999 executed by him in favour of defendant No. 1 in respect of suit lands were without consideration and hence void ab initio.

Both these suits were consolidated by the order of this Court. Thereafter issues were framed at Exhibit 330 in Special Civil Suit No. 100 of 2001 and at Exhibit 171 in Special Civil Suit No. 49 of 2003. Thereafter, applications were filed for addition and recasting of certain issues. Petitions filed against recasting issue No. 3 and deleting issue No. 2(3) were rejected by this Court (Coram: K.S. Jhaveri, J.) vide common judgment dated 29-4-2011 passed in Special Civil Application Nos. 13066 of 2010 with Special Civil Application Nos. 3930 of 2011. Letters Patent Appeal preferred against the said order was disposed of as being non-maintainable. Against the said order, when the matter went to Hon''ble Supreme Court, directions were given to the trial court for reframing of the issues. Now matter is pending for reframing of issues. At this juncture, defendant No. 4 of Civil Suit No. 100 of 2011 filed application at Ex.376 under Order VII Rule 11(a) and Rule 11(d) of the CPC for rejection of plaint of both the suits. The defendant Nos. 1 and 2 of Civil Suit No. 49 of 2003 also similar application at Ex.387. However, both these applications were dismissed by the trial court vide common order dated 11-12-2012. Hence, the present petitions.

Heard learned Senior Advocate, Mr. D.C. Dave with learned advocate, Mr. Ashish H. Shah for the applicant of Civil Revision Application No. 317 of 2012 and learned Senior Advocate, Mr. Mihir Joshi with learned advocate, Mr. Shital R. Patel for the applicant of Civil Revision Application No. 319 of 2012.

Learned Senior Advocate, Mr. D.C. Dave, submitted that application under Order VII Rule 11(d) can be submitted at any stage of trial, if suit is barred by law or cause of action does not arise. He placed reliance on a decision of the Hon''ble Apex Court in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust reported in (2012) 8 Supreme Court Cases page 706.

Taking this Court through certain paragraphs of the plaint, Mr. Dave submitted that as per the averments made in paragraph 7 of the plaint, benami transaction took place and, therefore, in light of the aforesaid decision, suit is hit by the provisions of law and plaint deserves to be rejected and trial court has not considered the same and by that committed an error. He further submitted that though prima facie suit is time barred, trial court has committed serious error in holding that question of limitation could be decided only after recording the evidence as it is a mixed question of facts and law. He relied on the following decisions:

i) T. Arivandandam Vs. T.V. Satyapal and Another, ;

ii) Saleem Bhai and Others Vs. State of Maharashtra and Others, ;

iii) U.S. Sasidharan Vs. K. Karunakaran and Another, ; and

iv) 1998 (2) GLH 823 in the case of Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja Vs. Rajmata Vijaykunverba, Wd/o Late Maharaja Mahendrasinhji.

Learned Senior Advocate, Mr. Mihir Joshi, submitted that original plaintiffs have not disclosed in the plaint as to how they are owners of the property and how their name is appearing in the revenue record as plaintiffs have no title over the property and no copy of the sale deed was produced and, therefore, in light of the decision rendered by this Court reported in Maharaj Shri Manvendrasinhji Ranjitsinhji Jadeja (supra) relied on by learned counsel, Mr. Dave, plaint requires to be rejected and trial court has committed error in not considering the same.

This Court has gone through common order dated 11-12-2012 passed by the learned Principal Senior Civil Judge, Kalol, below Ex.376 and 387 in Special Civil Suit No. 100 of 2001 and Special Civil Suit No. 49 of 2003 respectively.

It is to be noted that in the suit of the year 2001 which is consolidated with suit of the year 2003, written statement was filed and issues were framed by the trial court. However, applications for deleting particular issue was rejected by this Court (Coram: K.S. Khaveri, J.) vide order dated 29-4-2011 passed in Special Civil Application No. 13066 of 2010 with Special Civil Application No. 3930 of 2011. Letters Patent Appeal No. 932 of 2011 preferred against the said order was treated as non-maintainable. Said order was carried in appeal before Hon''ble Apex Court wherein following order has been passed on 18-11-2011 in Special Leave to Appeal (Civil) No. CC 18516 of 2011 and SLP (C) No. CC 19275 of 2011:

We have heard Mr. L. Nageshwara Rao, learned senior counsel for the petitioner.

Delay condoned.

We do not find any justification to interfere with the impugned order. With regard to the grievance raised by Mr. Rao that Issue No. 3 has not been properly framed by the Trial Court, having regard to the prayer clause (d) of para 27 of the plaint, we give liberty to the petitioner to apply to the Trial Court for re-framing Issue No. 3. It is primarily the duty of the Trial Judge to frame proper issues confined to material questions of fact and law in light of the pleadings of the parties and examination under Order X Rule 2 of the Code of Civil Procedure, 1908 (for short "Code"), if any. In this view, if an application is made by the petitioner, the Trial Court, having regard to the power given to it under Order XIV Rule 5 of the Code, shall pass appropriate order after hearing the parties concerned.

Special Leave Petition stands disposed of accordingly.

SLP (C) No. CC 19275 of 2011:

We have heard Mr. Nikhil Goel, learned counsel for the petitioner.

We do not find any justification to interfere with the impugned order. In case the petitioner feels that proper issues in light of the pleadings of the parties have not been framed by the Trial Court, it will be open to the petitioner to apply to the Trial Court for re-framing the issues.

Special Leave Petition stands disposed of accordingly.

It appears that re-framing of the issues in the suit is pending before the trial court and thereupon application Ex.387 in Special Civil Suit No. 49 of 2003 has been preferred by the original defendant Nos. 1 and 2 for rejection of the plaints of both the suits. Original defendant No. 4 also preferred application Ex.376 under Order VII Rule 11(a) and 11(d) of the CPC for rejection of the plaint of Special Civil Suit No. 100 of 2001 as no cause of action has arisen to file the said suit. Both the Special Civil Suit No. 100 of 2001 and Special Civil Suit No. 49 of 2003 were consolidated by the order of this Court.

It has been observed by the trial court that plaint should not be read in piecemeal but the whole plaint should be read. On the going through the plaint in its entirety, it has been observed by the trial court that it is premature to dismiss the plaint at this stage without recording the evidence. This Court agrees with the said view taken by the trial court. This Court has also gone through relevant para 7 of the plaint to which my attention has been drawn by learned Senior Advocate, Mr. Dave.

I do not agree with the submission of Mr. Dave that considering the averments made in the plaint, suit is hit by the provisions of law. If the plaint is gone through more particularly the relief prayed for in the plaint, then, it has been rightly held by the trial court that without recording the evidence, the issue as to whether the suit is barred by the provisions of Benami Transactions Act or not cannot be decided as no relief is asked for as far as the averments made in reference to the provisions of Benami Transaction Act is concerned.

Learned Senior Advocate, Mr. Mihir Joshi submitted that there is no title of the plaintiffs, however, their name is appearing in the revenue record and, therefore, when there is no title over the property, the suit is not tenable and trial court has committed error.

This Court does not agree with the aforesaid submissions of learned Senior Advocates, M/s. Dave and Joshi.

It is pertinent to note that at the stage when reframing of issues is pending before the trial court, applications are filed for rejection of plaints and hence, this Court is of the opinion that same issue will be decided by the trial court while deciding the suits. Therefore, considering the power under Article 227 of the Constitution of India, when the order passed by the trial court is found to be legal and proper, question does not arise to entertain these petitions.

This Court totally agrees with the ratio laid down in the decisions relied on by the learned Senior Counsel that if Court is satisfied at any stage of trial that suit is not maintainable or cause of action does not arise or suit is hit by the provisions of law, plaint can be rejected. However, considering the facts of the case especially considering the prayer made in the plaint, those decisions are not applicable to the facts of the case.

Thus, both these petitions are dismissed.

Considering the fact that suit is of the year 2001 in which suit of 2003 is also consolidated, trial court is directed to dispose of the suits as early as possible preferably within one year from the date of receipt of copy of this judgment Office to place a copy of this judgment in each matter.