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SCA/3057/2007 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3057 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
DEVCHANDBHAI
NATHALAL PATEL - Petitioner(s)
Versus
BABULAL
JIVRAMDAS PATEL & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BY MANKAD for
Petitioner(s) : 1,
MR MAHENDRA K PATEL for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 11/07/2008
ORAL
JUDGMENT
The petitioner ?
original plaintiff has filed this petition under Article 227 of the
Constitution of India praying for quashing and setting aside the
order dated 6.6.2006 passed by the 8th Joint Civil Judge
(S.D.) at Mehsana whereby the plaint of Special Civil Suit filed by
the petitioner was rejected under Order 7 Rule 11(a). According to
him, no cause of action arose in favour of the petitioner and
against the respondent.
This Court has issued
notice on 13.2.2007 and interim relief in terms of para 13(c) of the
petition was granted whereby the respondents were restrained from
selling, transferring or alienating the properties as described in
the schedule appended with the plaint. Thereafter, rule was issued
by this Court on 10.7.2007 and interim relief granted earlier stood
continued till the final disposal of this petition.
Heard Mr. B.Y.Mankad,
learned advocate appearing for the petitioner and Mr.Mahendra K.
Patel, learned advocate appearing for the respondents.
It is the case of the
petitioner that the petitioner and the respondent No.2 are
originally residents of Village ? Shankhalpur, Dist. Mehsana.
Thereafter, they settled at Nashik in the State of Maharashtra to do
their business. The respondent No.2 is son of respondent No.1. The
respondent No.2 wanted to have loan from the Co.operative Bank at
Nashik. The respondent No.1 met the petitioner and requested him to
stand as guarantor for respondent No.2. The respondent No.1 had
agreed to create charge on the properties situated at Village ?
Shankhalpur, Taluka ? Becharaji in Dist. Mehsana, for security of
loan. The petitioner agreed for the same. Therefore, as per the
mutually agreed terms and conditions the respondent No.1 had
executed agreement cum irrevocable general power of attorney on
10.1.2000 in favour of the petitioner. Thus, the petitioner was
authorised by the respondent No.1 to sell the properties of
agricultural lands as well as buildings belonging to the
respondents, in case, the respondent No.2 fails to repay the loan
amount and interest to the Bank.
Thereafter, the
petitioner stood as a guarantor and then the respondent No.2
received loan of Rs.10 lacs from Jan-Kalyan Bank and Rs.7 lacs from
the Jan-Laxmi Bank. Then the respondent No.2 committed default in
repayment of the loan and hence filed suits against the respondent
No.2 before the Board of Nominee and the same are pending. The
petitioner has already deposited Rs.6,80,000/- with the Jan-Kalyan
Co.operative Bank towards the outstanding amount of loan of
respondent No.2.
The respondent No.1
lodged criminal complaint on 16.9.2003 in Sarkarwada Police Station
at Nashik, which was registered as FIR No.CR I ? 183/2003. In
this complaint he has alleged that the petitioner has committed a
fraud and the irrevocable power of attorney is a bogus and sham
document. A Criminal Case No.999/2003 based on this is pending
before the JMFC at Nashik. Thereafter, on 18.9.2003 the police
authorities have seized the original documents of irremovable power
of attorney dated 10.1.2000.
The petitioner,
thereafter, filed Regular Civil Suit No.51 of 2006 in the Court of
Civil Judge (S.D.) Mehsana. The Court rejected the plaint under
Order 7 Rule 11(a) of CPC on the ground that the suit does not
disclose any cause of action on 14.3.2006. Thereafter, the
petitioner filed another suit being Special Civil Suit No.12 of 2006
on 28.3.2006 on the same cause of action under Order 7 Rule 13 CPC
by making an exhaustive pleading and giving the specific cause of
action in para 36 of the plaint, wherein it is stated that since the
irrevocable power of attorney has been seized by the police and is
in the custody of the Court the petitioner can not sell the
properties situated at Village ? Shankhalpur. Therefore, in order
to get injunction against the respondent No.2 from selling or
alienating the properties, institution of the suit was necessary.
The learned trial Judge
vide his order dated 6.6.2006 rejected the plaint under Order 7 Rule
11(a) of CPC by holding that the plaintiff ? petitioner has failed
to show that he has been stopped by the respondents in taking action
as per the power of attorney and, therefore, no cause of action has
arisen to institute the suit.
It is this order which is
under challenge in the present petition filed by the petitioner
under Article 227 of the Constitution of India.
Mr.Mankad, learned
advocate appearing for he petitioner has submitted that the learned
trial Judge has failed to ascertain cause of action from the
averments of the plaint by reading the express provision contained
under Order 6 Rule 2 and Order 7 Rule 11 of CPC. He has further
submitted that the learned trial Judge has not correctly read the
averments made by the petitioner in the plaint.
Mr.Mahendra Patel,
learned advocate appearing for the respondents submitted that all
the transactions took place at Nashik and simply because the
property situated at Shankhalpur, no jurisdiction can be conferred
on the Court at Mehsana. Hence on the ground of jurisdiction the
plaint can be rejected under Order 7 Rule 11(a) of CPC. Precisely
for this reason the learned trial Judge has observed in his order
that no cause of action arose within the jurisdiction of the Court
and hence the plaint was rightly rejected by the Court. He has,
therefore, submitted that no interference is called for and it is
not required to exercise writ jurisdiction by this Court under
Article 227 of the Constitution of India.
Having heard learned
advocates appearing for the respective parties and having gone
through the orders of the trial Court as well as ground raised in
the present petition and reply filed by the respondents, this Court
is of the view that the learned trial Judge has committed grave
error and wrongly exercised jurisdiction while rejecting the plaint
under Order 7 Rule 11(a) of the plaint. While reading clause 36 of
the plaint, it clearly appears that cause of action arose in favour
of the petitioner and, therefore, suit was rightly instituted by the
petitioner. The learned trial Judge has not addressed himself as to
whether he has jurisdiction to entertain the suit and hence the
submissions made by Mr. Patel in this regard cannot he accepted. The
Court is, therefore, of the view that the order passed by the
learned trial Judge for rejection of the plaint of the suit is
required to be quashed and set aside and hence it is accordingly
quashed and set aside. The Special Civil Suit No.12 of 2006 is
restored to the file and the learned trial Judge is directed to
proceed further in the said suit. It is made clear that the Court
has not expressed any opinion as to whether Civil Judge (S.D.)
Mehsana has jurisdiction to entertain the suit and hence it is open
for the respondents to make appropriate application for framing of
preliminary issue and if such an application is made by the
respondents the same should be decided in accordance with the
provisions of law.
Subject to the above
observations and clarifications, the petition is accordingly allowed
and rule is made absolute without any order as to costs. Interim
relief granted by this Court at the time of admission of this
petition shall be continued till the application Ex.5 is decided by
the trial Court.
(K.
A. PUJ, J.)
kks
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