KASAM MUSA MAKVANA Vs. MARIYAM KASAM MAKVANA

JUDGEMENT

(1.) By filing present Civil Revision Application under Sec. 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), the applicants have challenge the order dtd. 12/1/2024 passed below application, Exh.19 by the learned 5th Additional Senior Civil Judge, Jamnagar in Special Civil Suit No.21 of 2022, whereby the application, Exh.19 preferred by the applicant under Order 7, Rule 11(d) of the CPC came to be rejected.

(2.) Heard learned Senior Counsel, Ms. Manisha Lavkumar Shah assisted by learned advocate, Mr. Rohan Lavkumar Shah with learned advocate, Mr. Aaditya Dave for Nanavati Associates for the applicant and learned Senior Counsel, Ms. Trusha Patel assisted by learned advocate, Mr. Digvijaysinh Chauhan for learned advocate, Mr. Shivangi Vyas for the respondents.

(3.) Learned Senior Counsel, Ms. Shah submitted that the appellants are the original defendants in Special Civil Suit No.21 of 2022 filed by the respondents herein, who are the original plaintiffs, before the court of the learned Senior Civil Judge, Jamnagar inter alia praying for declaration that the original defendants are having 42.86% share in the land bearing Survey No.790 admeasuring 2/62/4 Sq.Mtrs. situated in Jamnagar City (hereinafter referred to as 'the land in question' for short) and as also praying for order of handing over possession thereof and restraining the original defendants from selling, mortgaging, gifting, transferring etc. the land in question to third party and also prayed for cancellation of Entry No.78 mutated in the revenue record in or around 1951 declaring it to be null and void ab initio. She submitted that pursuant to issuance of the notice, the original defendants have appeared before the learned trial court and submitted an application under Order 7, Rule 11(d) of the CPC for rejection of the plaint on the ground of delay in institution of the suit, however, the learned trial court had rejected the said application by impugned order, which led to filing of the present application. She submitted that the issue relating to consideration of an application under Order 7, Rule 11 of the CPC is no longer res integra because the Hon'ble Court has to consider the averments made in the plaint as well as documents produced along with it, therefore, she is making submission on the strength of the facts as narrated in the plaint.