1. This revision under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) challenges the order dated 30.6.2011 passed by the learned Civil Judge (S.D.), Vadodara, below Exhibit-15 in Regular Civil Suit No.41 of 2011 whereby, he has rejected the application made by the revisionist under rule 11of Order VII of the Code.
2. The respondent No.1 herein instituted a suit being Regular Civil Suit No.41 of 2011 in the Court of the learned Civil Judge (S.D.), Vadodara for cancellation of registered sale deed and for permanent injunction. In the said suit, the revisionist preferred an application under rule 11 of Order VII of the Code, which came to be rejected by the impugned order.
3. Mr. M. B. Gandhi, learned advocate appearing with Mr. Nilesh Pandya, learned advocate for the revisionist, assailed the impugned order, submitting that the relief claimed by the respondent No.1 herein in the above referred suit is based upon a decree obtained in the year 1997, that is, prior to more than twelve years from the date of institution of the suit. In the circumstances, the suit is barred by limitation inasmuch as, the period of limitation for executing the decree has elapsed and therefore, the decree has been rendered null and void. Inviting attention to the relief claimed in the plaint, it was submitted that the plaintiff has sought a declaration that the sale deed dated 22.1.2010 executed in favour of the revisionist is illegal and null and void and that the plaintiff has become owner of the suit land by virtue of the sale deed dated 30.11.2010 executed in his favour by a power of attorney. It was submitted that from the evidence on record as well as the pleadings in the plaint, it is apparent that the plaintiff is not in possession of the suit property. Referring to the provisions of section 34 of the Specific Relief Act, 1963 and more particularly, to the proviso thereto, it was submitted that in view of the said provision, no court can make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. It was submitted that in the present case, though the plaintiff has sought for a declaration of title, he has omitted to seek any prayer for possession and as such, the suit under section 34 of the Specific Relief Act is not maintainable. In support of the said submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Mehar Chand Das v. Lal Babu Siddique and others, AIR 2007 SC 1499.
4. Next it was submitted that the right of the plaintiff is based upon an agreement to sell dated 11.1.1985 on the basis of which, a consent decree came to be passed on 17.6.1997. It was submitted that the said decree was not executed and became time-barred on account of lapse of twelve years. In the meantime, a sale deed came to be executed in favour of the revisionist by the original owners and subsequently, the power of attorney has executed a sale deed in favour of the plaintiff, which is not registered. It was submitted that there cannot be two registered sale deeds of the same property and once, the sale deed executed by the original owner in favour of the revisionist has been registered, there is no question of registering the sale deed executed by the power of attorney in favour of the plaintiff. It was pointed out that the defendant No.6 – power of attorney holder has executed the sale deed as a power of attorney of Lakhiben, who has expired in the year 1986, Nathiben who has expired in the year 1992 and Ambalal who has expired in the year 2003. It was submitted that the said persons having expired, the power of attorney executed in favour of the defendant No.6 was no longer valid and as such, any document executed on the basis of the said power of attorney is illegal and null and void. It was urged that a suit instituted on the basis of a sale deed executed on the strength of such a power of attorney, deserves to be dismissed.
5. Referring to the averments made in the application under rule 11 of Order VII of the Code, it was submitted that after the death of Nathiben, Mahendrabhai had become the owner of 1500 square metres of land out of the suit land. It was submitted that the name of Mahendrabhai came to be entered into in the revenue record as owner of the said land and that the plaintiff had preferred an RTS Appeal against the same. Thus, the plaintiff was very well aware of the above referred facts and as such, the suit is bad on the ground of delay and laches and as such, the plaintiff is not entitled to any relief under the Specific Relief Act. In support of his submissions, the learned advocate placed reliance upon the decision of a Division Bench of this court in the case of Chandrakant Kantilal Jhaveri v. Madhuriben Gautambhai and another, 2011 (1) GLR 270, for the proposition that if it is found that the plaint does not disclose the cause of action, the court has no option but to reject the plaint. The court held that while deciding the question as to whether the averments made in the plaint disclose the cause of action or not, the court is not precluded from applying the statutory provisions or case law to the averments made in the plaint. If the assertion made in the plaint is contrary to the statutory law or case-law, it cannot be considered as a valid cause of action. Adverting to the facts of the present case, it was submitted that the claim made by the plaintiff is a fraudulent claim inasmuch as, the sale deed on the basis of which the plaintiff has instituted the suit has been executed on the basis of a power of attorney of persons who have expired a long time ago. It was submitted that Bipinbhai in whose favour the consent decree had been passed, expired on 16.11.2007, and in the year 2009, ten heirs of the original owners made an application for conversion of the land from new tenure to old tenure. Thereafter, the sale deed came to be executed in favour of the revisionist on 22.1.2010 which was registered and on the basis of the sale deed, necessary permission was obtained and Rajachiththi came to be issued.
6. Summing up his contentions, Mr. Gandhi further submitted that, thus, the plaintiff has no right to file the suit, firstly, because there is no registered sale deed in favour of the plaintiff, and secondly because the sale deed has been executed by the power of attorney after two of the persons have expired and as such, the power of attorney had no right or authority to execute the sale deed in favour of the plaintiff. In support of his submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Surajlamp And Industries Private Limited (2) Through Director v. State of Haryana and another, (2012) 1 SCC 656. It was further submitted that under section 54 of the Transfer of Property Act, transfer of immovable property of the value of more than Rs.100/- can only be made by a registered document. Therefore, as the sale deed dated 30.11.2010 is not registered, the plaintiff has no title in the immovable property and as such, cannot institute the suit. It was submitted that twelve years have elapsed since the decree came to be passed in favour of the plaintiff, and hence, the decree has become inexecutable. Lastly, it was submitted that section 34 of the Specific Relief Act bars the suit unless the prayer for possession is made. It was submitted that in the light of the aforesaid, the trial court was not justified in rejecting the application made by the revisionist under rule 11 of Order VII of the Code and that the impugned order deserves to be quashed and set aside, and the application made by the revisionist deserves to be allowed.
7. Vehemently opposing the revision, Mr. R. R. Marshal, Senior Advocate, learned counsel for the respondent – original plaintiff submitted that while considering an application under rule 11of Order VII of the Code, the strength or merit of the case is not relevant. What is relevant is as to whether any of the ingredients of clause (a) or clause (d) thereof are satisfied. Referring to the application made under rule 11 of Order VII of the Code, it was pointed out that the argument that the suit is barred by the provisions of section 34 of the Specific Relief Act has not been advanced before the trial court, nor has the question of limitation been advanced. As regards the question whether the power of attorney who had executed the sale deed in favour of the plaintiff could have executed the sale deed, the same can be decided only on merits and is not barred by any law. As regards the contention that the suit is barred by limitation, it was submitted that the relief claimed in the suit is for setting aside the sale deed dated 22.1.2010 executed in favour of the revisionist, which prayer is based upon the sale deed dated 30.11.2010 executed by the defendant No.6 in favour of the plaintiff. It was submitted that, thus, the suit has been instituted well within the period of limitation. It was submitted that while instituting the suit, the plaintiff is not executing the decree and that all that he says is that the sale deed dated 22.1.2010 is illegal. Insofar as the prayer made vide paragraph 10(C) of the plaint, it was submitted that it is the specific case of the plaintiff that he is in possession of the suit property and has, accordingly, prayed for a permanent injunction restraining the defendants from putting up any construction thereon. It was submitted that the strength of the rival case is a matter of evidence and cannot be decided in an application under rule 11 of Order VII of the Code. It was further submitted that for the purpose of deciding an application under Order VII rule 11 of the Code, the court can only look to the averments made in the plaint and after accepting the same to be correct in its entirety, if the court finds that no cause of action has been made out or that the suit is barred by law, an order rejecting the plaint can be made. Referring to the averments made in the plaint, it was submitted that the plaintiff has made out a cause of action and the suit is not barred by any law and as such, the trial court was justified in rejecting the application made by the revisionist for rejecting the plaint. Reliance was placed upon the decision of the Supreme Court in the case of Mayar (H.K.) Ltd. and others v. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100, for the proposition that a plaint cannot be rejected on the basis of the averments made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court under Order VII rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. Referring to the facts of the present case, it was urged that the averments made in the plaint do disclose the cause of action and therefore, the trial court has rightly said that the powers under Order VII rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff. The decision of the Supreme Court in the case of Jageshwari Devi and others v. Shatrughan Ram, (2007) 15 SCC 52, was relied upon for the proposition that there is a difference between the non-disclosure of a cause of action and defective cause of action; while the former comes within the scope of Order VII rule 11, the latter is to be decided during trial of the suit. It was submitted that in the present case, what is pleaded by the revisionist is that there is a defective cause of action which does not fall within the scope of Order VII rule 11 of the Code and can be decided only during the trial of the suit. Reliance was also placed upon the decisions of the Supreme Court in the cases of Hardesh Ores (P) Ltd. v. Hede and Company, (2007) 5 SCC 614; C. Natrajan v. Ashim Bai and another, (2007) 14 SCC 183; Ram Prakash Gupta v. Rajiv Kumar Gupta and others, (2007) 10 SCC 59 and Kamala and others v. K. T. Eshwara Sa and others, (2008) 12 SCC 661. The decision of the Supreme Court in the case of Liverpool & London S.P. & I Association Ltd. v.
M.V. Sea Success I and another, (2004) 9 SCC 512, was cited for the proposition that in ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate inquiry into doubtful or complicated questions of law or fact. By the statute, the jurisdiction of the court is restricted to ascertaining whether on the allegations, a cause of action is shown. The learned counsel submitted that in the facts of the present case, it is apparent that the plaint discloses a cause of action, and the same is not barred by any law. It was urged that when the statute says that the suit is barred by any law, it means barred by any basic law and not barred by any interpretation of law. The same does not mean that the court should enter into an elaborate inquiry upon the appreciation of the evidence on record and decide as to whether the suit can be said to be barred by law. It was submitted that in the present case, it cannot be said that the suit is barred by any law and that the contentions raised by the revisionist are basically on the merits of the case which can be decided only after appreciation of the evidence on record during the course of trial.
8. Next it was submitted that the present revision has been filed under section 115 of the Code, however, this case does not fall within the error of jurisdiction so as to call for exercise of revisional jurisdiction. It was submitted that it cannot be said that the civil court has no jurisdiction to try the suit, especially when at all stages the other side has won and the pendency of the suit does not vex the revisionist. It was contended that the basic contention that the plaintiff has committed fraud, is a matter of evidence. Referring to the decision of the Supreme Court in the case of C. Natrajan v. Ashim Bai and another (supra), it was submitted that the questions which were not raised before the learned trial Judge cannot be raised before the High Court and that insofar as the issue of limitation is concerned, the same has to be pleaded on facts. That in absence of any facts having been pleaded in the application under rule 11 of Order VII of the Code, the contention that the suit is barred by limitation, deserves to be rejected. It was, accordingly, urged that both the major grounds contended before this court were not taken before the trial court and as such, the revisionist cannot be permitted to raise the same for the first time before this court. It was argued that even otherwise, the decision of the trial court is correct. Attention was invited to the fact that against the order rejecting the plaintiff's application for interim injunction, the matter had reached up to the Supreme Court and that the plaintiff had failed. However, the Supreme Court had expedited the suit, which is a relevant consideration for the purpose of deciding the present revision. It was submitted that the applicability or otherwise of the decision of the Supreme Court in the case of Suraj Lamp and Industries Private Limited (2) Through Director v. State of Haryana and another (supra), would be tested on the basis of the evidence adduced during the course of trial. It was, accordingly, urged that the revision being devoid of merit, deserves to be rejected.
9. In the background of the facts and contentions noted hereinabove, it may be germane to briefly refer to the contents of the plaint. The respondent No.1 – plaintiff has pleaded in the plaint that the suit property bearing survey No.599/1 situated in the sim of Mouje Village Manjalpur, Taluka & District Vadodara (hereinafter referred to as “the suit property”), originally was of the ownership of Bapubhai Khushalbhai Vankar. Subsequently, upon coming into force of the Vadodara City Town Planning Scheme No.19, the said land was given final plot No.189, admeasuring 2518 square meters. That an agreement to sell dated 11.1.1985 came to be entered into between the plaintiff's father and the heirs of deceased Bapubhai Khushalbhai Vankar, namely, Shri Ambalal Bapubhai Parmar, Bai Nathiben, widow of Bapubhai Khushalbhai and their daughter Lakhiben, in the presence of a Notary, after accepting Rs.3,03,448=95 from the plaintiff's father. The said agreement to sell had been executed by the power of attorney of the original owners, that is, the defendant No.6. Thereafter, as the defendant No.6 was not executing the sale deed, the plaintiff's father instituted a suit being Regular Civil Suit No.356 of 1997 wherein a consent decree came to be passed in favour of the plaintiff's father on 17.6.1997. In terms of condition No.4 of the consent decree, the plaintiff's father had paid the remaining amount of sale consideration, that is, Rs.5,63,550/- within a period of 30 days, that is, on 27.6.1997. However, since the suit land was of new and indivisible tenure, the sale deed was to be executed after the tenure came to be changed into old tenure. Accordingly, after the plaintiff's father expired on 16.11.2007, the defendant No.6 executed the registered sale deed dated 30.11.2010 in favour of the plaintiff bearing sale deed No.14151 and handed over possession of the property to the plaintiff. It is further averred in the plaint that the defendants No.1 and 2, with the intention of depriving the plaintiff of his right, had hatched a conspiracy along with the defendants No.4 and 5 and by creating a bogus thumb impression of deceased Nathiben, created false and fabricated document. That the defendants No.1 and 2 had no right to transfer the suit land. However, without the knowledge of the plaintiff, the defendants No.1 to 3 had executed registered sale deed dated 22.1.2010 in favour of the defendants No.4 and 5. It is further averred in the plaint that the duration of the agreement to sell in favour of the plaintiff is till the change of tenure in terms of the consent deed. It is also averred that the defendants No.4 and 5 have started putting up illegal construction on the suit property and that upon the plaintiff meeting the defendants No.4 and 5 in October 2010, the said defendants had threatened the plaintiff that they would use the suit property in any manner they like and may even sell the same. That in view of the said threats, the plaintiff issued a public notice dated 8.10.2010 in the local newspaper. However, the defendants had continued to administer threats. That after the sale deed dated 30.11.2010 came to be executed in favour of the plaintiff, the defendants had again threatened the plaintiff that they would continue putting up construction on the suit land and would sell the same. In the cause of action paragraph, it is stated that the plaintiff's father had purchased the property from the original owners by virtue of the agreement to sell dated 11.1.1985 and that upon the original owners and the defendant No.6 refusing to act on the basis of the said agreement to sell, the plaintiff's father had instituted Special Civil Suit No.356 of 1997 for specific performance of the agreement wherein a consent decree dated 17.6.1997 came to be passed, wherein it was agreed that the agreement to sell would continue to remain in force till the tenure of the land is changed. It is further stated that though the plaintiff had become the owner and occupier of the suit land, the defendants No.1 to 3 had, with a view to deprive the plaintiff of his right, executed sale deed in favour of the defendants No.4 and 5 and were threatening to put up construction thereon and transfer the same which has given cause of action to institute the suit. In the background of the aforesaid facts, the plaintiff has prayed for a declaration that the sale deed dated 22.1.2010 is illegal, inexecutable, null and void, and to declare that the plaintiff has become the owner and occupier of the suit land by virtue of the sale deed dated 30.11.2010; to hold that the defendants No.4 and 5 have no right or authority to put up any construction or change the nature of the suit property or transfer the same to third parties by virtue of the illegal sale deed; and that by virtue of the sale deed dated 30.11.2010, the plaintiff having become the owner and occupier of the suit land, to declare that the defendants have no right to in any manner, obstruct or cause injury to the plaintiff's rights or to take possession of the suit land; and to grant permanent injunction restraining the defendants from putting up any construction or changing the nature of the suit land, or in any manner, transferring the same.
10. In the application under rule 11 of Order VII of the Code, the revisionists have stated that the agreement to sell dated 11.1.1985 was right from inception illegal and ab-initio null and void as being contrary to the statutory provisions which prohibit such an agreement being entered into. It is further stated therein that the lands in question being of new tenure, there is a specific bar against executing an agreement to sell in respect of the same. Thus, the agreement to sell does not get any support from any provision of law and as such, even if there is any such agreement, the same is illegal and ab-initio null and void and as such, there is no question of specific performance of such an agreement. Not only that, the agreement on which reliance has been placed by the plaintiff does not disclose payment of any consideration to the original owner. It is further stated that Lakhiben expired in 1986, Nathiben expired in 1992 and Ambalal expired in 2003. Hence, any power of attorney executed by them in the year 1986 stands cancelled and any contract or documents executed in the name of the deceased persons are illegal and ab-initio null and void. It is further stated that Special Civil Suit No.356 of 1997 having been instituted after the death of Lakhiben and Nathiben, is a suit against dead persons and as such, the consent decree passed in such a suit is illegal and ab-initio null and void. It is further averred that the plaintiff by suppressing the fact regarding death of Lakhiben and Nathiben, has committed fraud and cheating upon the court and any consent decree passed upon such false representation, cannot be executed. In the circumstances, no cause of action has arisen for institution of the suit. It is also stated that the original owner Nathiben had executed a will in favour of one Mahendrabhai and upon her death, Mahendrabhai had become the owner of 1500 square metres of the suit land and as such, any contract entered into in relation to the suit land after 1992 is illegal and null and void. That the sale deed which forms the basis of the plaintiff's claim has been executed by a power of attorney of persons who have expired a long time ago and as such, the same is null and void in the eyes of law. It is, inter alia, averred that one Manibhai had obtained rights by virtue of succession in the suit property and that the plaintiff has not challenged the rights of Mahendrabhai and Manibhai. That the name of Mahendrabhai is already been reflected as owner of part of the suit land in the revenue record, hence, it is apparent that the plaintiff must have been aware of the same. In fact, the plaintiff had filed RTS Appeal against the same and as such, the suit is barred by limitation. That the sale deed executed in favour of the plaintiff has not been registered and that false facts had been stated before the Registrar, hence, further proceedings have not been taken. In the circumstances, the plaintiff has no legal right to institute the suit claiming ownership of the suit property. It is further contended that the plaintiff has not prayed for necessary relief in relation to title of the suit property and as such, there is no cause of action for instituting the suit of the present nature. It is, accordingly, contended that the suit has been instituted without any cause of action and that the same is apparently time barred. Not only that, the suit has been instituted by the plaintiff on the basis of the agreements which are barred by law and as such, the plaint deserves to be rejected.
11. The trial court, in the impugned order, has referred to the contents of the application under rule 11 of Order VII of the Code and has recorded the contentions raised by the learned advocates for the respective parties. The trial court has observed that an application under rule 11 of Order VII of the Code, cannot be decided on the basis of the written statement filed by the defendant and can be considered only on the basis of the averments made in the plaint. On a perusal of the averments made in the plaint, necessary averments have been made. The trial court has observed that at this stage, the evidence cannot be appreciated and the court cannot decide any question on the merits at this stage. After considering the decisions on which reliance had been placed by both the sides, the trial court found that at this stage, the plaint could not be rejected under Order VII rule 11 (a) and (d) of the Code and accordingly, rejected the application.
12. From the facts and contentions noted hereinabove, it is apparent that the revisionist seeks rejection of the plaint mainly on four grounds: firstly, that the plaintiff has no right to file the suit as there is no registered sale deed in favour of the plaintiff; secondly on the count that the sale deed in favour of the plaintiff has been executed by the power of attorney after two persons who had executed the power of attorney in his favour had expired; thirdly on the count that since twelve years have elapsed since the decree came to be passed in favour of the plaintiff, the decree has become inexecutable; and lastly on the count that the plaintiff not being in possession of the suit property, in view of the provisions of section 34 of the Specific Relief Act, the suit is barred unless a prayer for possession has been made.
13. Dealing with the last contention first, it has been submitted that as the plaintiff is not in possession of the suit property, unless there is a prayer for possession, the suit is barred in view of the provisions of section 34 of the Specific Relief Act. In this regard, a perusal of the averments made in the plaint reveals that it is the case of the plaintiff that he is in possession of the suit property. On behalf of the revisionist, reliance has been placed upon the order passed by the trial court in the application made by the plaintiff seeking temporary injunction. It is settled legal position, as held by the Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Association, (2005) 7 SCC 510, that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order VII rule 11 of the Code. Essentially, whether the plaint discloses a cause of action is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. In the circumstances, no reliance can be placed on the order passed by the trial court while deciding the application for temporary injunction made by the plaintiff for the purpose of examining as to whether the plaintiff is in possession of the suit property. The contention that the suit is barred by virtue of the provisions of section 34 of the Specific Relief Act as no prayer has been made for possession, therefore, deserves to be rejected.
14. Another contention is that no registered sale deed has been executed in favour of the plaintiff and that the two of the persons who had executed power of attorney in favour of the defendant No.6 have expired prior to the execution of the sale deed in question. In this regard it may be noted that the averments made in the plaint indicate that it is the case of the plaintiff that the sale deed is a registered one. Insofar as the averments that the persons who had executed the power of attorney have expired are concerned, the same form part of the application under rule 11 of Order VII of the Code, made by the revisionists. The Supreme Court in the case of Popat and Kotecha Property v. State Bank of India Association (supra) has held that the plaint cannot be rejected on the basis of allegations made by the defendant in his written statement or in an application for rejection of the plaint. Under the circumstances, the application made by the revisionists for rejection of the plaint cannot be taken into consideration while deciding the said application. The allegation that two persons who had executed the power of attorney have expired prior to the execution of the sale deed, therefore, cannot be taken into consideration by considering the application under rule 11 of Order VII of the Code. The said contention also, therefore, does not merit acceptance.
15. Insofar as the contention that the suit is barred by limitation as the decree came to be passed more than twelve years prior to the institution of the suit and therefore, the execution of the decree is not permissible is concerned, the learned counsel for the respondent plaintiff has invited attention to the relief claimed in the suit, to submit that the suit is not based upon the decree and that there is no prayer seeking execution of the said decree. In the aforesaid circumstances, it is not possible to state that the suit has become time barred as the same has been instituted more than twelve years after the passing of the consent decree. As to whether or not the suit is barred by limitation would, therefore, be a matter of evidence and has to be established one way or the other by the contesting parties.
16. As regards the contention that the suit is not maintainable as under section 54 of the Transfer of Property Act, no title has been created as the document is not registered, the learned counsel for the contesting respondent is justified in contending that the strength or merit of the case is not relevant at this stage. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not, must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed. In Jageshwari Devi and others v. Shatrughan Ram, (supra), it was held that there is a difference between the non- disclosure of a cause of action and defective cause of action; while the former comes within the scope of Order VII rule 11, the latter is to be decided during trial of the suit. The contention raised on behalf of the revisionists that the cause of action disclosed is vague and incomplete, is not a ground for rejection of the plaint under Order VII rule 11 of the Code. In Popat and Kotecha Property v. State Bank of India Association (supra), it was held by the Supreme Court that clause (d) of Order VII rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII rule 11 CPC. Clause (d) of rule 11 of Order VII applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.
17. Adverting to the facts of the present case, the question as to whether the power of attorney had the authority to execute the sale deed in favour of the plaintiff; whether the plaintiff is in possession of the suit property; etc., are disputed questions of fact which cannot be delved into while considering an application filed under rule 11 of Order VII of the Code. In the facts of the present case, from the statements made by the plaintiff in the plaint, it cannot be stated that no cause of action has been made out or that the suit is barred by any law in force.
18. The contention that the agreement to sell itself is illegal and ab-initio void inasmuch as the same is contrary to the provisions of the statute and therefore, not enforceable in law, and as such, the suit is barred, also does not merit acceptance inasmuch as, as to whether the agreement to sell is in fact barred by any law etc. are all facts which would be brought on record by the defendants. On the averments made in the plaint, it is not possible to state that the agreement to sell is barred by any statutory provision. Therefore, the said contention also does not merit acceptance.
19. As noticed hereinabove, the trial court in the impugned order, has observed that the application under Order VII rule 11 of the Code, cannot be decided on the basis of the averments made in the written statement and that considering the contents of the plaint, the necessary pleadings have been made in the same. It is in view of the aforesaid findings recorded by it, that the trial court has rejected the application under Order VII rule 11 of the Code. This court is in agreement with the findings recorded by the trial court and does not find any reason to take a different view.
20. In the light of the above discussion, it is apparent that there is no legal infirmity in the impugned order passed by the trial court nor can it be said that the same suffers from any jurisdictional error so as to warrant interference in exercise of powers under section 115 of the Code. The revision, therefore, fails and is, accordingly, dismissed. Rule is discharged with no order as to costs.
[HARSHA DEVANI, J.] parmar*