Supreme Court Of India
Before : Uday Umesh Lalit and R. Subhash Reddy, JJ.
Civil Appeal No. 8197 of 2019 (Arising out of SLP (C). D/d 22.10.2019.
Shaukathussain Mohammed Patel – Appellant
Versus
Khatuben Mohmmedbhai Polara – Respondent
For the Appellant : Somesh Chandra Jha, R.M. Jadhav, Rahul Narang, Anand Darshan, Advocates.
For the Respondent : – Aniruddha P. Mayee, A. Rajasthan, Sanjeev Kr. Choudhary, Advocates.
Important
For purpose of rejection of plaint entirety of averments in plaint have to be taken into account.
Civil Procedure Code, 1908, Order 7 Rule 11 – Rejection of Plaint – Sustainability – Plaint rejected on ground of limitation – For purposes of provisions of Order 7, Rule 11 of Code, entirety of adverments in plaint have to be taken into account – As detailed in plaint, there was element of deception and fraud which was practised upon plaintiff as result of which concerned document got entered into – As per assertion in plaint plaintiff was always in possession of property – High Court was not right and justified in accepting prayer and holding that plaint was required to be rejected – Order set aside and order passed by trial court restore.
Order
Leave granted.
2. This appeal arises out of the final judgement and order dated 06.05.2019 passed by the High Court of Gujrat at Ahmedabad in Civil Revision Application No. 354 of 2017.
3. The instant proceeding arise out of an application preferred by the respondent under the provisions of Order 7, Rule 11 of the Code of Civil Procedure Code, 1908, which was initially rejected by the High Court in its revisional Jurisdiction.
4. Special Civil Suit No. 204/2016 was filled by the appellant in the Court of Principal Civil Judge, Surat submitting inter alia that by deception, a sale deed came to be obtained on 21.03.2008 under which the appellant purportedly sold away his interest in Block 221 at Survey No. 91 situated at Village Bhanodara, District Surat, Gujrat. Though the sale deed was effected, the appellant continued to be in possession of the property. The relevant assertions as regards cause of action and limitation as pleaded in the Suit were as under.
“10. The cause of suit : That, the defendant of this case has executed as a sale deed No. 5728 of the agriculture land occupied by the plaintiff on dated 21/03/2008, without the knowledge of the plaintiff and in collusion with other person and thereby created false and forged, non executable sale deed, which affect the plaintiff’s right, title and interest. Since than , the cause of action arose for this suit. Further, if the defendant is not prevented to further continue the above transaction, in that case, on the basis of the aforesaid alleged sale deed, further sale deeds will be continued. Therefore also, it is required to prevent the present defendant.
11. Limitation : The present suit is within limitation, because of out of he knowledge of the plaintiff, by rendering wrong under standing, by way of creating false and forged sale deed No. 5728 on dated 21/03/2008 is created in the same of the defendant. Thus, on the basis of this alleged sale deed, the defendant has made application to post Entry No. 1750 in the Revenue Record on dated 15/06/2013, which came to be rejected on dated 30/07/2013. Thus, against this Entry, the present defendant has preferred an appeal being No. 362/2013 before Deputy Collector, the notice of that appeal was served to me and therefore, the plaintiff came to know that, the alleged sale deed is executed in the land owned by the plaintiff. Therefore, the present suit is filed within limitation as per legal provisions.”
5. With the aforesaid averments, the appellant prayed as under :
“2. As the defendant of this case has, out of the knowledge of the plaintiff, created in his name false, non executable and forged sale deed No. 5728 on dated 21/03/2008, which affect the interest of the plaintiff over the land, which is requested to be cancelled. It is requested to declare that it is null and void and the intimation of cancellation of sale deed may be forwarded to the Sub-registrar office.”
6. Pursuant to the application moved by the respondent-original defendant under Order 7, Rule 11 of the Code, The Trial Court considered the issue and by its order dated 07.03.2017 rejected the prayer. In revision arising therefrom, the High Court by its judgement and order, which is presently under appeal, interfered in the matter and held that in terms of the provisions of Order 7, Rule 11 of the Code, the plaint was required to be rejected. The High Court observed as under :
“16. From overall reading and from consideration of the relevant proposition, it appears that this being a litiation generated after more than a period of 8 years, is clearly hit by law of limitation and as such, in view of the proposition of law laid down by the Apex Court, the revision petition deserves to be allowed. Accordingly, the order impugned dated 7.3.2017 passed below Exh. 16 in Special Suit No. 204 of 2016 is quashed and set aside hereby and accordingly, the applicant under Order 7, Rule 11(d) of the Code of Civil Procedure stands allowed and the plaint i.e. Special Civil Suit No. 204 of 2016 is hereby rejected. Rule is made absolute with no order as to costs.”
7. It is well settled that for the purpose of the provision of Order 7, Rule 11 of the Code, the entirety of the averments in the plaint have to be taken into account. Going by the version of the appellant as detailed in the plaint, there was an element of deception and fraud which was practised upon him as a result of which the concerned document got entered into. It is also a matter of record that the consideration in respect of the transfer of the property in question was stated to have been paid in cash.
8. Again going by the averments made in the plaint, the information in respect of the transaction came to the knowledge only in the year 2013-214. According to the assertions in the plaint, the plaintiff- appellant was always in possession of the property. In the plaint, the issues raised in the matter were certainty required to be considered on merits.
9. In our view, the High Court was not right and justified in accepting the prayer and holding that the plaint was required to be rejected. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and restore the one that was passed by the Trial Court.
10. Since the Suit now stands restored, we direct the parties to appear before the concerned Court on 25.11.2019.
11. We also direct the Trial Court to dispose of the Suit as expeditiously as possible and preferably within sis months.
12. The appeal is allowed in aforesaid terms. No costs.
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