KHATUNBEN MOHAMMEDBHAI POLARA Vs. SHAUKATHUSSAIN MOHAMMED PATEL

JUDGEMENT

(1.) The present Civil Revision Application under Section 115 is filed by the petitioner - original defendant against an order dated 7.3.2017 passed below Exh.16 in Special Civil Suit No.204 of 2016 under Order 7 Rule 11 of the CPC.

(2.) The background of the fact on which the present revision petition is filed is that respondent - original plaintiff (original owner) residing in U.K., had filed the civil suit through his power of attorney. The premise on which the suit was instituted is that plaintiff received the land in question by succession and to that effect, a revenue entry No.521 dated 17.10.1985 was mutated and as per the case of the plaintiff, when one Shaukathussain came to India in 2008, he was asked to sign certain documents to convert the land into non-agricultural land and thereby, the defendant got executed a sale deed on 21.3.2008. It is further the case of the plaintiff that the signature was taken in Gujarati and by giving a wrong impression, the sale deed was executed. It has further been the case that revenue entry No.1750 pertaining to this sale deed was not certified and the defendant had preferred Appeal No.362 of 2013 before the Deputy Collector against non-certification of revenue entry pertaining to sell. As per the case of the plaintiff, when power of attorney was in receipt of the notice of appeal proceeding, he came to know about execution of sale deed in 2013. As a result of this, immediately the suit was filed on 13.4.2016 which was numbered as Special Civil Suit No.204 of 2016.

(3.) Mr.Mehul Sharad Shah, learned advocate appearing on behalf of the petitioner, has vehemently contended that the suit which has been filed is hopelessly time barred, as is challenging and questioning the sale which took place in the year 2008. The very fact that sale transaction was a registered transaction, it was deemed notice and having knowledge of the said transaction and as such, since in the year 2016 the suit came to be filed, the proceedings are hopelessly time barred and in view of settled proposition of law, mere clever drafting will not permit the person to bring the proceedings within the limitation period and as such, in view of said proposition of law, the order of rejection is not legal and valid. It has further been contended that Article 58 of the Limitation Act would apply to the suit proceedings and the suit should have been within a period of 3 years from the date of registration. Hence, ex-facie the suit is hit by the provision of law and the power under Order 7 Rule 11d of the CPC ought to have been exercised. By drawing an attention to certain paragraphs of the suit itself, a contention is raised that cause of action which has been postulated in Para.10 itself is suggesting that the suit is time barred. Simply because certain averments have been made about the manner in which the transaction took place would ipso facto not absolve the plaintiff from the provision of the Limitation Act and as such, this kind of small pleadings will not be sufficient enough to adjudicate the proceedings.