DUDHIBEN HIRABHAI Vs. RAJANGIRI KISHOREGIRI GOSWAMI

JUDGEMENT

(1.) THE present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants nos. 2 to 13 to quash and set aside the impugned order dated 18/10/2011 passed by the learned 2nd Additional Senior Civil Judge, Rajkot below Exh. 154 in Special Civil Suit No. 254/2001 by which the learned trial Court has dismissed the said application submitted by the applicants, which was submitted to dismiss the suit/plaint in exercise of the powers under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure.

(2.) RESPONDENT no. 1-original plaintiff has instituted Special Civil Suit No. 254/2001 against the applicants and others in the Court of learned Principal Senior Civil Judge, Rajkot for specific performance of the 'satakhat'/agreement to sell dated 18/06/1997 and 25/08/1999 and also to quash and set aside the sale deeds executed in favour of original defendants nos. 22 to 48 and the 'satakhat' executed in favour of defendants nos. 14 and 15 and for permanent injunction and other consequential reliefs. In the said suit, respondent no. 1-original plaintiff submitted an application, Exh. 5 for interim injunction, which came to be rejected by the learned trial Court. It appears that being aggrieved and dissatisfied with the order passed by the learned trial Court below Exh. 5 respondent no. 1-original plaintiff preferred Appeal from Order No. 310/2009 and with the consent of the learned advocates appearing on behalf of the respective parties, inclusive of the learned advocate appearing on behalf of the applicants, the learned Single Judge by order dated 08/03/2010 disposed of the said Appeal from Order by directing the learned Civil Judge (Senior Division), Rajkot to decide and dispose of the aforesaid Special Civil Suit No. 254/2001 on merits as expeditiously as possible and preferably within six months with outer limit of nine months. It appears that thereafter, after a period of one year and four months of disposing of the Appeal from Order by this Court by which the learned Single Judge directed the learned trial Court to decide and dispose of the suit expeditiously and within six months with outer limit of nine months and after the said period was over, the applicants-original defendant nos. 2 to 13 submitted the application, Exh. 154 before the learned trial Court to dismiss the suit under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure alleging interalia that earlier respondent no. 1-original plaintiff instituted the suit against original defendants nos. 1 to 24 being Regular Civil Suit No. 661/2001 on the basis of the very agreement to sell and in the said suit original plaintiff did not pray for specific performance of agreement to sell and, therefore, the present suit is barred by Order 2 Rule 2 of the Code of Civil Procedure and, therefore, it was requested to dismiss the suit in exercise of powers under Order 7 Rule 11(A) and/or Rule 11(D) of the Code of Civil Procedure. The said application was opposed by the original plaintiff by submitting that the reliefs sought in both the suits are different. It was submitted that the earlier suit was only for permanent injunction against original defendants nos. 1 to 24 restraining them from alienating and/or transferring the suit land in question and the present suit has been filed for specific performance of the agreement to sell as well as to quash and set aside the sale deed executed in favour of other defendants and, therefore, the relief sought in the subsequent suit is not barred by Order 2 Rule 2 of the Code of Civil Procedure as alleged. It was also further submitted that even the application, below Exh. 154 to dismiss the suit is required to be dismissed on the ground of delay and on the ground that the same is belated, more particularly, when with the consent of the learned advocates appearing on behalf of the respective parties, inclusive of the applicants, the learned Single Judge had directed the learned trial Court to decide and dispose of the suit at the earliest and within the stipulated time but instead of proceeding further with the suit, the applicants have submitted the application only with a view to delay the trial and, therefore, it was requested to dismiss the said application. After considering the submissions made by the rival parties, the learned trial Court by impugned order dated 18/12/2011 has dismissed the said application, Exh. 154, which was submitted by the applicants-original defendants no. 2 to 13 to dismiss the suit in exercise of the powers under Order 7 Rule 11(A) and/or 11(D) of the Code of Civil Procedure. Being aggrieved and dissatisfied with the impugned order passed by the learned trial Court dated 18/10/2011 below Exh. 154 in Special Civil Suit No. 254/2011, the applicants-original defendants nos. 2 to 13 have preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.

(3.) IT is submitted by Shri Joshi, learned Senior advocate appearing on behalf of the applicants that as observed by the Hon'ble Supreme Court in the case of Saleem Bhai Vs. State of Maharashtra reported in (2003) 1 SCC 557 as well as the subsequent decision in the case of Sopan Sable Vs. Asst. Charity Commissioner reported in (2004) 3 SCC 137 the powers under Order 7 Rule 11 of the Code of Civil Procedure can be exercised at any stage of the suit but before the judgment is pronounced. Making the above submission and relying upon the above decisions, it is requested to allow the present Revision Application and quash and set aside the impugned order passed by the learned trial Court and consequently allow the application, Exh. 154 and dismiss the suit/plaint in exercise of the powers under Order 7 Rule 11 of the Code of Civil Procedure.