CRA/10920/2008 3/ 3 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 109 of 2008 ========================================================= MAHMADBHAI JIVANBHAI MOMIN & 2 - Applicant(s) Versus GAFURBEN WD/O VALIBHAI HUSENBHAI & 2 - Opponent(s) ========================================================= Appearance : MR AJ MEMON for Applicant(s) : 1 - 3. MR PR NANAVATI for Opponent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 18/09/2008 ORAL ORDER
Applicants
are original defendants. Present respondents have filed Regular
Civil Suit No.15 of 2008 before the learned Principal Civil Judge,
Sanand against the present applicant. In the said suit, applicants
filed application Exh.14 under Order 7 Rule 11(a) and (d) read with
Section 151 of Civil Procedure Code and prayed that the plaint be
rejected. It is this application which came to be dismissed by the
impugned order dated 12.6.2008.
Learned
advocate, Shri Memon, for the applicants vehemently urged that the
suit does not disclose any cause of action and that the same is
barred by law. Civil Court, therefore, erred in dismissing the
application filed under Order 7 Rule 11(a) and (d).
2.1 He
places reliance on the decision of T.Arivandandam V/s. Satyapal
and another reported in AIR 1977, SC 2421 wherein, referring to
the provisions made in Order 7 Rule 11, the Apex Court observed that
Court should find out reading the plaint whether it is manifestly
vexatious and meritless, in the sense of not disclosing a clear
right to sue.
2.2 Reliance
was placed on the decision of the Apex Court in the case of Mehar
Chand Das V/s. Lal Babu Siddique & Ors. reported in AIR 2007
SC 1499; wherein, Apex Court reiterated that mere suit for
declaration without claiming relief of possession is not tenable.
2.3 Reliance
was also placed any the decision of leaned Single Judge of this
Court reported in the case of Ishwarbhai alias Batukbhai L.Shah
V/s. Bhanushali Hiralal Mohanlal Nanda reported in AIR 2002
Gujarat 328. The said decision is, however, concerned with question
of interim injunction that can be granted in suit for specific
performance of agreement. Observations made therein would not have
in my view, any application in the present case.
Learned
advocate Shri P.R.Nanavati for the respondents however, opposed the
petition and submitted that impugned order suffers from no
illegality.
Having
heard the learned advocates and having perused the documents on
record, it clearly emerges that plaintiff has filed the suit
contending inter-alia that as owners of the suit land are in actual
possession thereof. However, names of the defendants have been
entered into revenue records by mistake. Procedure deleting the
names has been initiated during which time, the defendants are
threatening to enter the suit land and are attempting to put up
construction thereon illegally. In this background, the plaintiffs
have prayed that the Court may declare that the defendants have no
right, title or interest over the suit land. They have also prayed
that the defendants be permanently injuncted from entering the suit
land or disturbing the possession of the suit land of the
plaintiffs, through their servants, agents, etc.
Reading
the plaint as a whole, I do not find that the same does not disclose
any cause of action or that the same is barred by any law. What
relief can be ultimately granted has to be judged on the basis of
evidence that may be brought on record. This, however, certainly
would not be a case for exercising powers under Order 7 Rule 11.
The
contention that the interim-relief prayed in the Exh.5 application
is not relatable to the final result claimed in the suit can at best
be arguments at the stage of hearing of interim injunction
application and not for dismissal of the suit itself.
Under
the circumstances, revision application is dismissed. Notice is
discharged. Interim relief is vacated.
(AKIL
KURESHI, J.)
ashish//