Sunday, 3 November 2019

Supreme Court: Precaution to be taken by court before rejecting plaint on ground of limitation

It is well settled that for the purposes of the
provisions of Order VII 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.
Again going by the averments made in the plaint, the
information in respect of the transaction came to the
knowledge only in the year 2013-2014. According to the
assertions in the plaint, the plaintiff-appellant was always
in possession of the property. In the entirety of the
circumstances, as pleaded in the plaint, the issues raised in
the matter were certainly required to be considered on
merits.
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.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL N O.8197 OF 2019

SHAUKATHUSSAIN MOHAMMED PATEL  Vs KHATUNBEN MOHMMEDBHAI POLARA 

Dated:OCTOBER 22, 2019

O R D E R
Leave granted.
This appeal arises out of the final judgment and order
dated 06.05.2019 passed by the High Court of Gujarat at
Ahmedabad in Civil Revision Application No.354 of 2017.
The instant proceedings arise out of an application
preferred by the respondent under the provisions of Order VII
Rule 11 of the Code of Civil Procedure, 1908 which was
initially rejected by the Trial Court but came to be allowed
by the High Court in its revisional jurisdiction.
Special Civil Suit No.204/2016 was filed 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, Gujarat.
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 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, nonexecutable
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 the knowledge of the plaintiff, by
rendering wrong understanding, by way of creating false
and forged sale deed No.5728 on dated 21/03/2008 is
created in the name 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.”
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.”
Pursuant to the application moved by the respondentoriginal
defendant under Order VII 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 judgment and order, which is presently
under appeal, interfered in the matter and held that in terms
of the provisions of Order VII 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
litigation 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 Civil Suit No.204 of 2016 is quashed and set aside
hereby and accordingly, the application 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.”
It is well settled that for the purposes of the
provisions of Order VII 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.
Again going by the averments made in the plaint, the
information in respect of the transaction came to the
knowledge only in the year 2013-2014. According to the
assertions in the plaint, the plaintiff-appellant was always
in possession of the property. In the entirety of the
circumstances, as pleaded in the plaint, the issues raised in
the matter were certainly required to be considered on
merits.
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.
Since the Suit now stands restored, we direct the parties
to appear before the concerned Court on 25.11.2019.
We also direct the Trial Court to dispose of the suit as
expeditiously as possible and preferably within six months.

The appeal is allowed in aforesaid terms. No costs.
.................................J.
[UDAY UMESH LALIT]
.................................J.
[R. SUBHASH REDDY]
NEW DELHI;
OCTOBER 22, 2019

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