Allowed

Madhuben Mahendrakumar Shah through Her P.O.A. Milan Fakirchand Shah v. Sejal Malav Joshi

Gujarat HC22 Jul 2021FA/4069/2018

Case brief

AI extract

What is this about?

In this appeal, this court held that the trial court erred in partially rejecting the plaint under Order 7 Rule 11 CPC. The court ruled that partial rejection is impermissible and that rights, title, possession, and limitation issues cannot be decided at the stage of an application under Order 7 Rule 11; such questions require a trial on merits. The appeal was allowed, and the suit was restored.

What did the court decide?

The order of the trial court partly allowing the application under Order 7 Rule 11 CPC is set aside. The suit is restored to the file of the learned principal senior civil judge.

Madhuben Mahendrakumar Shah through Her P.O.A. Milan… — Property and Title | Gujarat HC (2021)

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 4069 of 2018 With

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CIVIL APPLICATION (FOR JOINING PARTY) NO. 3 of 2020 In R/FIRST APPEAL NO. 4069 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE DR. JUSTICE VINEET KOTHARI

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and HONOURABLE MR. JUSTICE B.N. KARIA

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

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

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2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?

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4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

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

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MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH

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Versus

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SEJAL MALAV JOSHI

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Appearance:

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MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1 DELETED(20) for the Defendant(s) No. 10,11,12,2,3,4,5,6 MR AV NAIR(5602) for the Defendant(s) No. 1 MR SHIRISH R PATEL(5605) for the Defendant(s) No. 1 RULE SERVED BY DS(65) for the Defendant(s) No. 7,8,9

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

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 22/07/2021

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ORAL JUDGMENT

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(PER : HONOURABLE MR. JUSTICE B.N. KARIA)

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Page 1 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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Present appellant is the original plaintiff in Special Civil Suit No.

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50 of 2014 before the learned Trial Court and has challenged the decree and judgment passed below Exh. 104 against the defendants No. 1 and 7 to 10, in the above said suit vide order dated 22.11.2017 whereby plaint Exh. 1 filed before the Trial Court was rejected by passing an order below Exhibit 104 preferred under Order 7 Rule 11(a) of the Code of Civil Procedure by defendant no.1.

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Short facts of the present case may be referred as under:

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2.1 As stated, the Appellant is the plaintiff before the trial Court in the suit while respondent no.1 is the defendant No.10 in the suit. The respondents No.2 to 9 were the defendants No. 2 to 9 in the suit. The respondent No.10 to 12, are defendants No.1/1 to 1/3 in the suit, who were impleaded after death of the defendant no.1 namely Mr. Arvindbhai Naranbhai Patel, as his legal heirs. As pe the facts alleged in the suit, in the year 2001, defendants no.1 to 6 offered to sale the property consisting of the land admeasuring 292 sqr meters along with 210 sqr meters super structure, being known 15, Premanjali Society situated in the Final Plot No. 74 of the TPS No. 1/B(Bodakdev) of Revenue Survey No. 262/2 of Bodakdev village of Ahmedabad District for Rs. 16,00,000/- showing that the suit property was of their joint ownership. Thereafter, one agreement for sell was executed by the defendants No.1 to 6 in favour of the plaintiff

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Page 2 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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accepting Rs. 1 lakh as part payment of the suit property in the year 2001. As per the averments made in the plaint, the plaintiff repeatedly requested to defendants No.1 to 6 to execute sale deed during the year 2001 to 2013. That, defendants No.1 to 6 executed sale deed of the suit property on 30^th March 2013 by accepting the remaining sale consideration of Rs. 15,00,000/- by four different cheques dated 15^th April 2013 from the plaintiff. It is further averred in the plaint that on the date of execution of the sale deed in favour of the plaintiff, the valuable movable properties of the defendants no. 1 to 6 were lying in the suit property and hence, they requested the plaintiff to give time of 15 to 20 days for handing over physical possession of the suit property so that they may transfer their valuable movable properties to other place. The plaintiff was pleased to allow the defendants No.1 to 6 for vacating and transferring their valuable property and handing over the physical possession to the plaintiff as requested. Thereafter however, frequent request was made by the plaintiff for physical possession of the suit property, but it was not handed over to the plaintiff. Approximately on 4^th October 2013, the public warning notice was issued by the advocate on behalf of the defendant no.10 in daily news paper “Sandesh” stating that defendants No. 7 to 8 are the owners of the super structure admeasuring 250 sqr meters of the suit property and they have executed an agreement for sale in favour of the defendant no. 10 and have also handed over the physical possession of

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Page 3 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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the suit property. On the very next day ie, on 5^th October 2013, another public warning notice was issued by the defendants No.1 to 6 through their advocate in Sandesh News Paper stating that only land of the suit property was sold to the plaintiff and in the sale deed executed in favour of the plaintiff, sale of super structure has been written by mistake, and therefore, defendants No. 1 to 6 instructed the plaintiff to give correction in the sale deed and hence, on the same day, the plaintiff executed one notarized indemnity in their favour that they are not responsible for construction of the suit property. As the contents of both the public warning notices were false and fabricated, plaintiff inquired about the suit property and came to know that Regular Civil Suit No. 605 of 2013 was filed by the defendant No.10 against the defendants No.7 to 9 before the learned Principal Civil Judge, Ahmedabad (Rural) about some property somewhat identical to the suit property on the basis of four documents being (1) Possession receipt (2) Power of Attorney (3) Agreement for Sale and (4) Agreement of understanding. In Regular Civil Suit No. 605 of 2013, one panchnama of the suit property was prepared about identical to the suit property and within 27 days from the date of the filing of the suit, the defendants No. 7 to 10 presented joint pursis for getting compromise decree, and hence, plaintiff applied to become party in the suit ie., Regular Civil Suit No. 605 of 2013. The defendants No. 7 to 10 were not successful in getting compromise decree. Thereafter, the

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Page 4 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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plaintiff was approached by some brokers for inquiring about sale offers of the suit property by the defendants, and therefore, the plaintiff filed the suit on 17^th February 2014 against the defendants No. 1 to 10 for getting declaration that four documents as stated above and other documents were false, fabricated, illegal, unlawful, fraudulent, null, void ab initio and they do not belong to the suit property as well as defendants do not have any right, title or interest in the suit property. Further declaration was sought that possession of any of the defendants in the suit property is illegal and unauthorized, and prayed for getting possession of the suit property. During the pendency of the suit filed by the plaintiff, one Special Civil Application No. 12615 of 2016 was preferred by the plaintiff before this court with a request to expedite the suit. This Court was pleased to pass an order dated 28^th July 2016 with a specific direction that suit should be completed within 18 months. On 4^th October 2016, plaintiff filed her examination-in-chief before the learned trial Court. On the very same day, learned advocate appearing for the defendants filed a purshish that defendant No.1 was died on 20.02.2016, and hence, the legal heirs of the defendant no.1 were added in the suit. The defendant no.10, on 10^th July 2017, produced one sale deed, which was executed on 1^st November 2013 of the super structure of the suit property by the defendants No. 7 to 8 in his favour. Interim injunction was granted in the suit vide order dated 24.07.2017 below Exh. 62, against which, plaintiff

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Page 5 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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filed A.O. against the said order . Two applications were preferred by the plaintiff vide Exh. 63 and 91for amendment of plaint in the suit for including details of the defendant no. 10’s sale deed and for claiming and getting mesne profits in the plaint and for its cancellation, which was allowed vide order dated 11^th September 2017. Thereafter, the defendant no.10 filed an application under Order 7 Rule 11 of Code of Civil Procedure vide Exh. 104 for rejection of the plaint on 5^th October 2017, but no reply was filed by the plaintiff against the said application and just endorsed about non maintainability of the said application and immediate rejection of the same. The trial court partly allowed the application Exh. 104 and rejected the plaint against the defendants No. 7 to 10 by impugned judgment and decree dated 22.11.2017. Hence, the present appeal has been filed by the plaintiff.

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Heard learned advocate Mr. Ashish Dagli for the Appellant and learned advocate Mr. A.V. Nair for the Respondent No.1. Vide order dated 17.10.2018, the respondents No. 2, 3, 4, 5, 6, 10, 11 and 12 were deleted.

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It is submitted that the impugned order passed by the trial court below Exh. 104 rejecting the plaint against the respondents No. 7 to 10 dated 22.11.2017 is patently illegal, contrary to the facts on record, against the provisions of CPC. It is further submitted that while deciding an application under Order 7 Rule 11 of Code of Civil Procedure, only

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Page 6 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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the plaint and documents, on which, plaint is based, could be considered by the Court. However, trial Court did not consider any fact of the plaint or any document, on which, plaint was based. It is further submitted that defence of the defendants and their documents could not be considered while deciding the application under Order 7 Rule 11 of the Code of Civil Procedure. That, in the application preferred by the defendant No. 10, it is nowhere stated that how and why the plaint does not contain any cause of action for filing of the suit or how it was barred by law of Limitation and it does not state how and why plaintiff knew from the beginning about the sale deed No. 7125 in favour of the defendant no.10 on 01.11.2013 . That, the observation and conclusion arrived at by the trial court are erroneous, contradictory, unlawful and contrary to the provisions of law because, they are made as if all the contentions, averments and submissions are proved. That, learned trial court need not give any reasons for believing all the averments of the defendants as proved and all the averments of plaintiff as disproved. That, in the impugned judgment and order, it is nowhere mentioned by the trial court of any facts and avermenets made in the plaint, endorsement on impugned application, document presented with plaint and submissions against the said application in the impugned order. That defendants No. 7 to 10 are necessary parties to the trial suit besides defendants No. 1 to 6, because prayer of the plaintiff for possession and cancellation of

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Page 7 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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documents and evacuation of any and all of the defendants could only be adjudicated in presence of them. That, there was proper, due and enough cause of action against each of the defendants within limitation of time. That, trial court failed to appreciate and consider all the facts and did not explain how plaint does not make cause of action against defendants no. 7 to 10 and why facts and averments of plaint were clear and adequate cause of action against the defendants No. 7 to 10. That, impugned judgment and order cannot be passed without concluding proper and fair trial. That only intention of the defendant no.10 in filing said application under Order 7 Rule 11 of Code of Civil Procedure, was to delay the suit and nothing else. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned order dated 23.11.2017 passed below Exh. 104 filed by the defendant no.10 under Order 7 Rule 11 of the Code of Civil Procedure in the suit rejecting the plaint.

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On the other hand, learned advocate for the respondent no.1 has strongly objected the submissions made by learned advocate for the appellant and submitted that the judgment and decree passed below Exh. 104 against the defendants No. 1 and 7 to 10, in the above said suit vide order dated 22.11.2017 is proper. The learned trial Court has not committed any error in partly allowing the application Exh. 104. That, the suit property is in actual and physical possession of herself. That, the plaintiff has no cause of action for present suit against the defendants nos.

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Page 8 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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7 to 10 and lastly, he has requested to dismiss present appeal.

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Having heard learned advocates for the respective parties, documents produced on record, application Exh. 104 preferred by the defendant no.10 under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure and impugned order dated 22.11.2017, it appears that for rejection of the plaint, defendant no. 10 filed an application below Exh. 104 . It was stated by her in her application that the suit property was in actual and physical possession of herself and suit was filed for cancellation of the sale deed executed in her favour as well as for recovery of possession of the suit property belonging from her and permanent injunction against her as well as declaration of the adverse title to defendant no.10. It was further averred in the application that the plaintiff has no cause of action for presenting suit against the defendants no. 7 to 10 and nor specific relief was prayed in the plaint against defendants no.1 to 6 , who had executed sale deed in favour of the plaintiff. As per the submissions of the defendant no. 10 in application Exh. 104, suit was clearly time barred because the plaintiff had challenged the transaction of 22^nd April 1992 and ensured thereafter. The plaintiff was aware of the sale deed of defendant no.10 executed to her on 01.11.2013, which was challenged in the year 2017 making amendment in the plaint.

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The learned trial court has observed as under while passing the

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Page 9 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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order in Para 4 to 10 as under:

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4. Considering the history of the land in question, defendant Nos. 1 to 6 have no exclusive title to execute sale deed in favour of the plaintiff. The land in question was vested in original owners under ULC Act in which 11 descendants are holding common interest towards the land. But the bungalow on the plot was constructed by Nishit builders & Consultants. Thus, bungalow No. 15 was constructed by Nishit Builders and was handed over to defendant Nos. 7 & 8 and defendant Nos. 7 & 8 were the occupants of the bungalow since 1992 which is sold to defendant No. 10 vide registered sale – deed No. 7125 dated 01.11.2013. It is alleged that defendant No.1 to 6 had no right, title or interest to sell the suit property with its land to the plaintiff.

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5. While filling this suit, plaintiff never contended to cancel the sale-deed of defendant No. 10 but subsequently, made time barred amendment in the present suit and prayed for cancellation of sale deed of defendant No. 10.

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6. It is also not clarified in the plaint that how far defendant Nos. 1 to 6 were able to execute the sale – deed in favour of plaintiff and no actual share of the owners of the land are described in the sale-deed. So, it is prayed that plaintiff's suit has no cause of action against defendant No. 10. So the suit be rejected.

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7. From the pleadings, it becomes clear that defendant Nos. 7 & 8 were occupant and owner of the Shri Hari Bungalow having no perfect title on papers. Defendant Nos. 7 & 8 are residing at America. So, they appointed power of attorney defendant No. 9 and were intending to sell the suit bungalow in their occupation.

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Page 10 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021

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MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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Negotiations went on with defendant No. 10 who insisted to complete the title of the suit land on which bungalow is situated. But defendants Nos. 1 to 6 under mistakes of fact and by oversight considering that palintiff is the real and in fact purchaser of the suit Bungalow. The question of exercising fraud on defendant Nos. 1 to 6 is not alleged in this application because it is the defence of defendant. It is also not alleged in this application that suit is false and frivolous because it is the defence of the defendant. Considering only the fact narrated in the plaint. It transpires that plaint is cleverly drafted by advocate for the plaintiff, who is sonin-law of the plaintiff. The sale-deed executed in favour of pliantiff has not parted the possession to the plaintiff. Plaintiff is without possession of the suit property even on payment of consideration to defendant Nos. 1 & 6 of her own fault.

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8. Execution of the sale deed transaction in favour of plaintiff is a misconception on the part of defendant Nos. 1 to 6 can be proved only after going through evidence at the trial. The allegations made by the defendants in their written statement are required to be proved as to fraudulent transaction induced in favour of the plaintiff. The sale-deed challenged in favour of defendant No. 10 after periof of limitation is also a mixed question of fact and law because amendment in the plaint can be made at any stage with respect to the documents in favour of defence for its cancellation. Initially, plaintiff has prayed for cancellation every documents made in favour of the 10^th defendant and did not specifically challenged the sale-deed of the defendant No. 10 at the earlier stage of institution of the suit. But subsequently, when the defendant produced the sale -deed, specific relief as to cancellation of the sale-deed was preferred by the plaintiff. So, the

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Page 11 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021

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MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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question of limitation remains to be decided as a mixed question of fact and law.

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9. Looking to the only averments made in the plaint, plaint is cleverly drafted by son -in law of the plaintiff who is also an advocate in the present case and also made attestation of the sale deed and compared the document with its draft of the sale-deed of plaintiff executed in favour of plaintiff.

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10. As per paragraph 5 of the plaint, plaintiff herself avers the defendant Nos. 1 to 6 did not hand over the possession of the suit property and were making excuses and defendant Nos. 1 to 6 also issued a public notice to make correction in the sale deed of the plaintiff because plaintiff purchaser is mentioned falsely in the sale-deed by the plaintiff and her advocate son-in-law and palintiff also gave guarantee under notarized letter signed by plaintiff on 30.03.2013 that the defendant Nos. 1 to 6 have clearly no responsibility under sale-deed regarding superstructure of the Bungalow and it is also publicly noticed that defendant No. 7 Devendra Ramanlal Patel and Geetaben Devendra Patel are the owners and in possession of the suit bungalow since 1992. This averment in the plaint clearly shows that prior to institution of this suit when the plaintiff obtained the sale-deed in her favour, occupant and owner of the Bungalow were Devendra Ramanlal Patel and Govind Ramanlal from the year 1992. It is also mentioned in the plaint that the sale-deed in favour of plaintiff was made under mistake of the defendant Nos. 1 to 6.

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It appears that while passing the order below Exh. 104, trial court

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has observed that the question of limitation remains to be decided as mixed question of facts and law in para 8.

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Page 12 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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However, it was observed that plaint was cleverly drafted by son-

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in-law of the plaintiff who is also practicing advocate in the present case and also made attestation of the sale deed and compared the document with its draft of the sale deed executed in favour of the plaintiff. The trial court also decided in the order at this juncture that the plaintiff was never intended to purchase the suit property from the defendants No. 1 to 6 and 7, 8. The defendants No. 1 to 6 were to execute the sale deed of the property as a confirming party to justify the ownership of the defendants no. 7 and 8 which was materially suppressed by the plaintiff in the suit. Trial Court further decided at this juncture that defendants No. 1 to 6 were not occupying the bungalow of the defendants no. 7 and 8 but they remained in title of the land in the revenue records, and therefore, defendant nos. 7 and 8 were willing to sell the property to defendant no.10, as she wanted to purchase clearing the title of the suit property particularly of the land which was in the name of the defendants no. 1 to 6 at the time of execution of the sale deed. The finding arrived at by the trial Court while deciding the application under Order 7 Rule 11(A) of the Code of Civil Procedure are clearly beyond the purview of the Order 7 Rule 11(A) of the Code of Civil Procedure. Rights, title or interest at this juncture cannot be decided by the trial court in an application under Order 7 Rule 11(a) of the Code of Civil Procedure. Here, learned Judge of the trial Court has decided this application considering the defence of the

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

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defendant no.10 as well as other evidences before recording evidence or

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before proceeding of the suit filed by the plaintiff. Maintainability of the suit cannot be decided at this juncture on a grievance raised by the defendant no.10. Intention of any of the defendants to sell the property or not in presence of the sale deed executed in favour of the plaintiff cannot be decided. Sale deed executed in favour of the defendant no.10 was produced on record for the first time in the year 2017, and therefore, amendment was sought by the plaintiff by filing separate application, which was allowed.

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Order 7 Rule 11 of the Code of Civil Procedure, 1908, which reads as under:

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11. Rejection of plaint— The plaint shall be rejected in the following cases:—

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(a) where it does not disclose a cause of action;

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(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the

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valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped,

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and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed

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by the Court, fails to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law :

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(e)where it is not filed in duplicate.

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(f) where the plaintiff fails comply with the provision of Rule 9.

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Page 14 of 17

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021

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MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

¶100

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature form correcting the valuation or supplying the requisite stamp-paper , as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

¶101

It is settled law that the plaint as a whole alone can be rejected under Order 7 Rule 11 of Code of Civil Procedure, there is no provision in the Code of Civil Procedure for rejection of the plaint in part. The plain meaning of Order 7 Rule 11 of the Code of Civil Procedure seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. It does not imply any reservation in the matter of the rejection of the plaint.

¶102

The observations of the learned trial court that there is no cause of action of defendants No. 7 to 10 on the basis of the sale deed executed by the defendants No. 1 to 6 in favour without obtaining actual posession of the suit property or the plaintiff has no cause of action for cancellation of the sale deed of defendant no.10 and the recovery of the possession from defendant no.10 on the basis of the sale deed executed by the defendants No. 1 to 6 in her favour without obtaining possession of the suit property are contrary to the fact and beyond the scope of Order 7 Rule 11 of the Code of Civil Procedure. This cannot elevate itself into a rule of law, that

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Page 15 of 17

¶104

C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

¶105

once a part of a plaint cannot proceed, the other part also cannot proceed, and the plaint as a whole must be rejected under Order 7 Rule 11 of CPC. In all such cases, if the plaint survives against certain defendants and/or properties, Order 7 Rule 11 will have no application at all, and the suit as a whole must then proceed to trial.

¶106

The provisions of Order 7 Rule 11 of CPC are entitled to finally determined the rights of the parties, at earlier stage on the limited grounds stated in that rule. Partial rejection of the plaint is not permissible as observed in the judgment cited in (2018) 11 SCC 780, even if, part of the relief claimed in the suit would be within the jurisdiction of the court on that account also, plaint cannot be rejected as such as there cannot be partial rejection.

¶107

In the result, we hold that the order passed by the learned trial Court below application Exh. 104 in Special Civil Suit No. 50 of 2014 dated 22.11.2017 partly allowing the application preferred by the defendant no.10 holding that the plaint does not create cause of action against the defendants No. 7 to 10, and hence, rejected under Order 7 Rule 11(A) read with Section 151 of the Code of Civil Procedure is unsustainable and is hereby set aside.

¶108

Present appeal is allowed and Special Civil Suit No. 50 of 2014 is restored to the file of learned Principal Senior civil Judge, Ahmedabad (Rural) at Mirzapur.

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C/FA/4069/2018 JUDGMENT DATED: 22/07/2021 MADHUBEN MAHENDRAKUMAR SHAH THROUGH HER P.O.A. MILAN FAKIRCHAND SHAH Versus SEJAL MALAV JOSHI

¶111

We direct the learned trial Court to expeditiously dispose of the

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suit on merits. There will be no order as to costs.

¶113

As the main matter being First Appeal No. 4069 of 2018 is disposed of, Civil Application (For Joining Party) No. 3 of 2020 does not survive and accordingly stands disposed of.

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(DR. VINEET KOTHARI,J)

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(B.N. KARIA, J)

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K. S. DARJI

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Madhuben Mahendrakumar Shah through Her P.O.A. Milan Fakirchand Shah v. Sejal Malav Joshi

Case brief

What is this about?

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Madhuben Mahendrakumar Shah through Her P.O.A. Milan Fakirchand Shah v. Sejal Malav Joshi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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