Allowed

Nemabhai Bhanabhai v. Rajesh Laxmilal Bafna

Gujarat HC21 Jun 2018SCA/9323/2016

Case brief

AI extract

What is this about?

The single judge quashed the trial court's rejection of an application under Order 7 Rule 11 CPC. The appeal succeeded on grounds that the underlying suit for specific performance was barred by limitation (filed beyond 3 years) and lacked cause of action against petitioners due to no privity of contract.

What did the court decide?

Order dated 05/08/2015 passed by the Special Civil Judge, Surat, rejecting the application under Order 7 Rule 11 CPC was quashed and set aside.

Nemabhai Bhanabhai Vs Rajesh Laxmilal Bafna — Specific Performance | Gujarat HC (2018)

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C/SCA/9323/2016 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 9323 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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================================================================

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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================================================================ NEMABHAI BHANABHAI

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Versus

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RAJESH LAXMILAL BAFNA

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================================================================ Appearance:

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MR MEHULSHARAD SHAH(773) for the PETITIONER(s) No. 1,2,3,4,5,6,7,8,9

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RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3

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================================================================

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 21/06/2018

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ORAL JUDGMENT

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Heard ld. Advocate Mr. Mehul Sharad Shah, for the petitioner. Notice has been served, no one appears for the

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Page 1 of 7

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C/SCA/9323/2016 JUDGMENT

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respondent. The original defendants nos. 2 to 10 are the petitioners before this court. Under challenge is an order dated 5^th August 2015, below Exh. 24, passed by the ld.17^th Addl. Sr. Civil Judge, Surat in Special Civil Suit No. 578 of 2012. By such order, the ld. Civil Judge dismissed the application of the petitioners filed under Order 7 Rule 11 of the Civil Procedure Code, 1908.

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The brief facts are as under :

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2.1 The respondent no. 1 and 2 had instituted Special Civil Suit No. 578 of 2012, in the court of Senior Civil Judge, Surat. The copy of the plaint is annexed with the petition at Annexure (A). Reading of the plaint suggests that, it was a case of the respondents no.1 and 2 – original plaintiffs that they were constrained to approach the court seeking specific performance of an agreement to sell dated 31.03.2009, which according to the plaintiffs was entered into between them and the defendant no.1. In the plaint, it was a case of the respondents no. 1 and 2 - original plaintiffs, that for a land bearing Survey No. 292, which was owned by the petitioners ( defendant nos. 2 to 10), the defendant nos. 2 to 10 had executed an agreement to sell on 14.08.2007 in favour of defendant no. 1 – respondent no. 3 herein. The agreement was produced on record at Mark 3/12. According to the plaintiffs, the present petitioners had in turn sold the part of the land to the defendant no.1. So, defendant no.1 had by virtue of the agreement to sell on 14.08.2007, become the owner of the parcel of land, which in turn defendant no.1

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Page 2 of 7

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C/SCA/9323/2016 JUDGMENT

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agreed to sell to the plaintiffs by an agreement to sell deed dated 31.03.2009.

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In short, it was the case of the plaintiffs for an enforcement of an agreement to sell dated 31.03.2009, which the defendant no.1 had entered into with the plaintiffs. that, the subject land for which the defendant no.1 had entered into agreement was pursuant to agreement to sell dated 14.08.2007. By virtue of such agreement defendants no. 2 to 10, the petitioners had agreed to sell such land to the defendant no.1.

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The prayer in the suit, therefore, was for specific performance of agreement to sell against defendant no.1, dated 31.03.2009. Hence the suit was filed on 09.11.2012.

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The defendant nos. 2 to 10, the present petitioners preferred an application under Order 7 Rule 11 of the Civil Procedure Code 1908. In the application so filed, it was the case of the petitioners that, the suit was barred by the provisions of the Limitation Act. The agreement to sell for the enforcement was sought on 31.03.2009, whereas the suit was filed on 09.11.2012 beyond a period of 3 years. The other priliminary contention was that, since there was no privity of contract between plaintiffs and the defendant nos. 2 to 10, no cause of action had arisen against the defendant nos. 2 to 10. The plaintiff resisted such application. However, by the order impugned in this petition, the petitioner’s application under

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Page 3 of 7

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C/SCA/9323/2016 JUDGMENT

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Order 7 Rule 11 was rejected. The ld. Trial Judge opined that, the question of limitation was a mixed question of law and fact, which could be decided by reading evidences. Without apprehension, it is contended that there was a privity of contract between the plaintiffs and defendant no. 2 to 10, as it was only an agreement to sell dated 14.08.2007 between defendant no.1 and defendant no. 2 to 10 which was never a subject matter of challenge by the plaintiffs, hence no relief could have been granted to the plaintiff against the present petitioners.

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Mr.Mehul Sharad Shah, ld.Advocate appearing for the petitioners has submitted that the order of the Trial Court was bad on several counts. His submissions were as under.

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(a) That, if the subject matter of the suit was an agreement executed by defendant no.1, in favour of the plaintiffs on 31.03.2009, the present petitioners were not signatories to such documents, and therefore, no privity of contract between present petitioners and the respondent no. 1 existed. No cause of action therein, so far as petitioners are concerned was available.

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(b) According to Shri Shah, even as the plaint is perused, there is nothing on record to show that the present petitioners had received any consideration pursuant to an agreement dated 14.08.2007.

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(c) Shri Shah, further contended that, the ld. Trial Judge has comitted an error in disregarding the issue of limitation on the ground that it is a mixed question of law

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Page 4 of 7

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C/SCA/9323/2016 JUDGMENT

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and fact. Evidently, the plaintiff’s suit was barred under the provisions of Article 54 of Limitation Act, as the same was not filed within 3 years from the date of contract in support of his stand. Shri Shah, has relied upon the judgments of this court in the case of Becharabhai Zaverbhai Patel and Anr Vs. Jashbhai Shivabhai Patel and Ors , reported in 2013 (1) GLR 398. It was his case that, by merely a clever drafting and language in the suit, the suit cannot be brought within the period of limitation which the plaintiffs have sought to bring.

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He also relied on the judgments of the Supreme Court in the case of Fatehji and Company and Anr Vs. L.M. Nagpal and Ors. reported in (2015) 8 SC 390 , which was in support of his stand that, if there is a suit for specific performance of an agreement to sell for immovable property in accordance with Article 54 of the Limitation Act, the suit was patently barred by limitation, as it was filed beyond a period of 3 years.

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Though this court has specifically admitted the petition, the plaintiffs - contesting respondents no. 1 and 2 though, notice has been served have not appeared before this court. The court is therefore constrained to proceed with the hearing in absence of respondents no.1 and 2 both.

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From the facts and the submissions narrated herein above, it becomes evident on reading the plaint that, the plaintiff was seeking enforcement of the agreement to sell

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C/SCA/9323/2016 JUDGMENT

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which was perpetually entered into by defendant no.1 on 31.03.2009 with the plaintiffs. According to the plaintiffs, the suit land for which such an agreement to sell was entered into by defendant no.1, such defendant derived the right to such land by virtue of he being brought in to the possession of such land by virtue of agreement to sell that the present petitioners are alleged to have entered into with the defendant no. 1, on 14.08.2007.

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Nowhere in the plaint, had anyone assailed the agreement to sell dated 14^th August 2007, between the defendants no. 2 to 10 - petitioners herein with the defendant no.1. The suit essentially therefore was for enforcement of an agreement to sell between the plaintiffs and defendant no.1. Obviously, there was no privity of contract between the present petitioners and the plaintiffs. No cause of action therefore exists.

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Even if the prayer of the plaintiffs in the suit is perused, it is for specific performance of an agreement to sell of immovable property. The agreement is dated 31.03.2009, whereas, the suit is filed on 09.11.2012. Apparently, the suit therefore, in accordance with Article 54 of Limitation Act was barred by law. When such an issue becomes apparent, the ld. Trial Judge, could not have held that the question of limitation is a mixed question of law and fact, left to be decided at the time of trial.

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Page 6 of 7

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C/SCA/9323/2016 JUDGMENT

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On these two grounds, therefore, I am of the opinion that the order below Exh. 24, dated 05.08.2015, in the Special Civil Suit 578 of 2012, deserves to be quashed and set aside. Petition is allowed. Rule is made absolute accordingly. No order as to cost.

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(BIREN VAISHNAV, J)

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Radhika Srinivasan

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Nemabhai Bhanabhai v. Rajesh Laxmilal Bafna

Case brief

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Nemabhai Bhanabhai v. Rajesh Laxmilal Bafna

Case brief

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