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FA/491/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 491 of 2011
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MUKESHBHAI
DAHYABHAI BAROT
Versus
PREMJIBHAI
RAMJIBHAI PATEL & 5
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Appearance
:
MR NK MAJMUDAR WITH MR SANJAY
SUTHAR for Appellant
MR SURESH M SHAH for Respondent Nos.1-4
None
for Respondent Nos.5-6
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 13/04/2011
ORAL
ORDER
[1] Heard
Mr.N. K. Majmudar, learned counsel for the appellant and Mr.M. S.
Shah, learned counsel for the respondent Nos.1 to 4.
[2] The
instant appeal is filed challenging the order dated 24.12.2010
rendered by the learned 7th Additional Senior Civil Judge,
Ahmedabad (Rural), Mirzapur, Ahmedabad below application at Ex.16 in
Regular Civil Suit No.137 of 2009 whereby the aforesaid application
Ex.16 filed by the respondents herein under Order – 7, Rule –
11(d) of the Civil Procedure Code came to be allowed and the plaint
in the aforementioned suit filed by the appellant – original
plaintiff came to be rejected.
[3] Having
considered the submissions advanced on behalf of both the sides, so
also the impugned order rendered by the trial Court as well as
considering the copy of the plaint annexed with this appeal, it
transpires that the appellant filed the suit praying for the relief
that the registered sale-deed dated 01.10.1974 be cancelled and
prayed for other consequential relief for permanent injunction. After
the aforesaid suit was filed, the respondents herein filed
application in the suit at Ex.16 under Order – 7, Rule –
11 of the Civil Procedure Code and requested for rejection of plaint.
The trial Court, after considering the plaint and the submissions
advanced on behalf of both the sides, observed that though the
appellant – plaintiff pleaded in the plaint that on the date of
the execution of disputed sale-deed, he was minor, but the plaintiff
himself produced his School Leaving Certificate which reveals that on
the date of execution of the disputed sale deed, he was aged about 19
years and 4 months. The trial Court further took into consideration
the averments made in the plaint more particularly in paragraph No.3
of the plaint and observed that so far as the signature of the
plaintiff in the disputed sale deed is concerned, the plaintiff
himself is not firmed in his case namely on one breath, he says that
he has no personal knowledge about his signature and on the second
breath he pleads that he has not signed it and he does not know
anything and he further says that he does not know as to whether has
signed the documents or somebody else signed on his behalf because on
the date of the execution of the documents, he was minor. The trial
Court, considering the School Leaving Certificate produced by none
other then the plaintiff himself in suit, observed that even prima
faice on the date of the execution of the documents, the plaintiff
cannot be said to be minor. Furthermore, the bare perusal of the
impugned order reveals that the plaintiff himself produced copy of
pedigree in the suit and there is no dispute that one of the
attesting witness of the document was the father of the plaintiff
himself. The trial Court further observed that on or about 1998,
father of the plaintiff died and, thereafter, the suit came to be
filed in the year 2009. The trial Court, in the above facts and
circumstances of the case, observed that the suit was, therefore,
filed after about 34 years from the date of execution of the disputed
documents. Perusing the paragraph No.4 of the order, it further
transpires that the trial Court relied upon a case of Prem Singh Vs.
Birbal and others, reported in AIR 2006
SC 3608, wherein it has been observed by the Apex Court that
in the suit for cancellation of sale-deed wherein it is the
allegation that the sale deed came to be executed during plaintiff’s
minority and therefore the same is void, either Article 59 or
residuary article of Limitation Act would apply and if the suit filed
neither within 12 years of deed nor within 3 years of attaining
majority is barred by limitation. The ratio laid down by the Apex
Court would apply with more force in the instant case as by
production of the School Leaving Certificate showing the date of
birth of the plaintiff by the plaintiff himself, it clearly appears
that on the date of execution of the documents, he was not minor.
When the document is produced by the plaintiff himself, the question
of recording of evidence to prove it does not arise.
[4] Mr.N.
K. Majmudar, learned counsel for the appellant relied upon a case of
Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and others,
reported in (2006) 5 SCC 658, wherein in connection with the
matter arising under Order – 7, Rule – 11(d) of the Civil
Procedure Code, the Hon’ble Apex Court observed in the background of
the facts and circumstances of the said case that the suit could not
be dismissed as barred by limitation without proper pleadings,
framing of issue of limitation and taking of evidence. As in the
background of the facts and circumstances emerged in the said case,
the Hon’ble Apex Court held that the question of limitation was a
mixed question of law and fact . The reliance is also placed upon a
case of Popat and Kotecha Property Vs. State Bank of India Staff
Association, reported in (2005)
7 SCC 510, wherein in a matter
arising under Order – 7, Rule – 11(d) of the Civil
Procedure Code and considering the peculiar facts and circumstances
of the said case, the Hon’ble Apex Court observed that in a disputed
question, the provision contained under Order – 7, Rule –
11(d) of the Civil Procedure Code should not have been invoked. A
reliance is also placed upon a case of C. Natrajan Vs.
Ashim Bai and Another, reported
in (2007) 14 SCC 183,
wherein in a matter arising under Order – 7, Rule – 11(d)
of the Civil Procedure code and on the peculiar facts and
circumstances of the said case, the Hon’ble Apex Court observed that
the question of limitation in the said case was mixed question of law
and fact. The Hon’ble Apex Court further observed that the question
as to whether the suit is
barred by limitation or not, would depend upon the facts and
circumstances of each case.
[5] In the
above view of the matter, this Court does not find any ground to
interfere with the impugned order passed by the trial Court.
Mr.Majmudar, learned counsel for the appellant submitted that at this
stage, the bare averments made by the plaintiff in the plaint shall
have to be considered and not the defence of the defendants. There
can not be any dispute regarding the preposition of law canvassed by
the learned counsel for the appellant, but perusing the impugned
order rendered by the trial Court, there does not appear anything to
come to the conclusion that the trial Court relying upon the written
statement of the defendants, passed the order. The trial Court only
considered the averments made in the plaint.
[6] In
above view of the matter, this Court does not find any reason to
admit the appeal and hence, the appeal deserves to be dismissed.
[7] For the
foregoing reasons, the appeal stands dismissed.
[
J. C. UPADHYAYA, J. ]
(vijay)
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