LAXMANJI BHALAJI Vs. SAHARBHAI MOTIBHAI DESAI

JUDGEMENT

(1.) The present Revision Application is preferred against the order dated 8.5.2014 passed below Ex.19 in Regular Civil Suit No.223 of 2014 decided by the learned Ninth Additional Senior Civil Judge, Ahmedabad, wherein the trial Court rejected the application preferred by the present applicant under Order 7 Rule 11 (A) and (D).

(2.) This present Civil Revision Application is taken up for final disposal with the consent of the parties. I have heard the learned counsel for the respective parties. The counsel of the applicant has submitted that the moot question requires consideration is even if the plaint is read as it is the cause of action stated in the Regular Civil Suit No.223 of 2014 by the applicant is imaginary and even if the plaint is believed as it is there is no existence of cause of action. The learned counsel of the applicant has submitted that for deciding whether any cause of action actually exist or not, this Court can even consider the statutory law as well as judicial pronouncement as settled by the Division Bench of Gujarat High Court in the case of Maharaja Shri Manvendrasinghji R. Jadeja vs. Rajmata Vijaykuverba wd/o Maharaja Mahendrasinghji, reported in 1999 GLR 261. The learned counsel further submitted that as settled by the Apex Court in the decision reported in I.T.C. Ltd., vs. Debts Recovery Appellate Tribunal & Anr., reported in (1998) 2 SCC 70 that merely an illusory cause of action created by clever drafting would not make the suit maintainable.

(3.) Mr.Tattvam Patel, learned counsel for the applicant has submitted that though there is a checkered history the issue requires on limited aspect about maintainability of suit by reading plaint itself. The learned counsel of the applicant submitted that the land in question involved in the present suit is situated at Ahmedabad District, Taluka : Dascroi, Village : Jagatpur, admeasuring in all 46,640 Sq.Mtrs. The land was with one Bhalaji Gandhi (since deceased) being protected tenant. Allegedly on 26.6.1984 the Agreement to Sale was executed in 1981 in favour of one Prabhatbhai Haribhai Desai (deceased). In 1982, there was an order of Deputy Collector to convert the land to as old tenure land. Allegedly the power of attorney was executed in favour of Babubhai Nagjibhai Patel by Bhalaji Gandaji, Chudaji Bhalaji, Amarsingh Bhalaji and Jivatben and further Jivatben wife of Bhalaji had executed such power of attorney for three minors, namely, Vinaji Bhalaji, Laxmanji Bhalaji and Mansingh Bhalaji on 26.6.1984.