JIVRAJBHAI ARJANBHAI LAKHIYA Vs. MOHANBHAI JIVANBHAI PATEL

JUDGEMENT

(1.) Challenge in this petition is made to the order passed by the 2nd Additional Senior Civil Judge, Navsari dated 06.01.2014 below application Exh. 43 and Exh. 1 in Special Civil Suit No. 34 of 2011. The impugned order is in two parts. 1.1 The first part is that the application Exh. 43 filed by one of the defendants under Order VII, Rule 11 of the Code of Civil Procedure for rejection of the plaint, is allowed and the Special Civil Suit No. 34 of 2011 (Exh.1) is rejected. That part of the impugned order is not under challenge before this Court. 1.2 The second part of the impugned order is that, Exh. 13 (application of the year 2006), which was in the earlier disposed of suit being Special Civil Suit No.05 of 2001, is permitted to be reopened, for adjudication on merits, on the payment of cost of Rs.10,000/-. The said suit was already dismissed as abated in the year 2004 (vide order dated 01.07.2004). Exh.13 application was for condonation of delay in filing application for revival of the said suit and bringing legal heirs of the defendant brother on record. The said application was also subsequently withdrawn on 22.08.2010. It is this application which is now permitted to be reopened and thereby the earlier round of litigation, which had attained finality, is attempted to be reopened. It is this part of the impugned order, which is challenged in this petition by the original defendant No.6.

(2.) Rule.

(3.) Mr. Mitul Shelat, learned advocate for Mr. Amit Thakkar, learned advocate for the petitioner has submitted that, the present petitioner is the owner of the property in question. It is submitted that the original plaintiff had already filed Special Civil Suit No. 05 of 2001 challenging the sale-deed of the property dated 02.03.2000. The original defendant had contested that suit. During the pendency of that suit, the original defendant had died on 03.07.2003. The legal heirs of the original defendant were not brought on record. The said suit thus stood abated. The application for condonation of delay in filing restoration of the said suit was also disposed of on 22.08.2010. In the meantime, the suit property was already sold by the legal heirs of the original defendant vide sale-deed dated 13.10.2006 and thereafter the Special Civil Suit No. 34 of 2011 was filed challenging the sale-deed of the year 2000 i.e. 02.03.2000 and by way of amendment, challenge was made to the sale-deed dated 13.10.2006. It is submitted that these facts were put to the notice of the Court below by the parties, more particularly by the present petitioner and it was prayed to the Trial Court by filing application Exh. 43 (under Order VII, Rule 11 of the CPC) that the suit be rejected. It is submitted that while allowing the said application, the Trial Court overstepped its jurisdiction by further ordering that on payment of cost of Rs. 10,000/-, it would be open to the original plaintiff to revive the application for condonation of delay for revival of Civil Suit No. 05 of 2001, which shall be considered by the Court on merits. It is submitted that the Court below could not have passed any order concerning the Civil Suit No. 05 of 2001 since it was beyond the scope of the Suit in question i.e. Civil Suit No. 34 of 2011. It is further submitted that even on merits, the Court below could not pass such an order. It is submitted that the property was sold by the original defendant to the petitioner vide sale-deed dated 13.10.2006 and challenge to the said sale-deed was barred by limitation in the year 2011 when the suit was filed. It is submitted that in any manner and the right of the present petitioner could not have been jeopardized. It is submitted that the second part of the impugned order be quashed and set aside.