Punjab-Haryana High Court
Man Singh And Others vs Joga Singh And Others on 25 January, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
C.R. No. 1358 of 2010 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
C.R. No. 1358 of 2010
Date of Decision: January 25, 2012
Man Singh and others
.....Petitioners
Vs.
Joga Singh and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr.Chetan Mittal, Sr. Advocate with
Mr. S.K. Jain, Advocate
for the petitioners.
Mr.Sanjiv Gupta, Advocate
for respondent No.1.
-.-
M.M.S. BEDI, J.
Defendants, aggrieved by dismissing of their application under Order 7 Rule 11 CPC vide impugned order dated February 4, 2010, have invoked the jurisdiction of High Court under Article 227 of the Constitution of India claiming that the application under Order 7 Rule 11 CPC filed by the petitioners should have been allowed, rejecting the plaint of the plaintiff- respondent No.1 being barred by limitation. The trial had formed C.R. No. 1358 of 2010 [2] an opinion that plea of limitation being a mixed question of law and fact, the suit cannot be summarily dismissed under Order 7 Rule 11 CPC.
In order to appreciate the contentions of defendant- petitioners, it is expedient in the interest of justice to appreciate the contents of the plaint filed by plaintiff- respondent No.1. Copy of the plaint has been appended as annexure P-1. Vide his suit, the plaintiff- respondent No.1 has sought a declaration that he is owner in possession as co-sharers of the land measuring 36 kanals 8 marlas which is half share of 72 kanals 17 marlas, as mentioned in the heading of the plaint and that the judgment and decree dated June 14, 1977 passed by the Civil Court in Mann Singh and others Vs. Joga Singh is wrong and result of fraud and collusion and liable to be set aside. The mutation, on the basis of said decree has also been challenged. The rapat dated March 8, 1979 regarding exchange between defendant No.3 and defendants No.5 and 6 and subsequent mutation of March 11, 1979 have been challenged, as wrong. A judgment and decree dated June 14, 1980 passed in favour of defendant No.3 at the instance of defendants No.5 and 6 and subsequent mutation on the basis of said decree have also been challenged.
In the application under Order 7 Rule 11 CPC, the defendant- petitioners claimed that the judgment and decree dated June 14, 1977 has been challenged after 30 years and the subsequent revenue entries including mutations cannot be challenged in view of Section 45 of the Punjab Land Revenue Act prescribing litigation of 3 years for seeking declaration especially when plaintiff is not in possession. Equal efficacious remedy of C.R. No. 1358 of 2010 [3] appeal under Sections 13 and 14 of the Punjab Land Revenue Act is available to challenge the mutations of 1977 and 1980. Mutation cannot be challenged after limitation of one year under Article 100 of the Limitation Act. A judgment and decree can be challenged within a period of three years under Sections 3, 29 and 30 of the Limitation Act and Article 58 and 59 of the Schedule. It has been wrongly claimed that the plaintiff came to acquire knowledge in February 2008 when he visited the village after 30 years.
Mr.Chetan Mittal, learned senior counsel for the petitioners has relied upon N.V. Srinivasa Murthy and others Vs. Mariyamma (dead) by proposed LRs and others, AIR 2005 SC 2897, wherein it has been observed that where a suit is hopelessly barred by limitation but cleverly drafted to overcome limitation, the trial Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earlier stage. He relied on T.Arivandandam Vs. T.V. Satyapal, AIR 1977 SC 2421, an elaborated judgment written by Justice Krishna Iyer, deprecating the practice of engineering of fake litigation, observing that long arm of law must throttle such litigative caricatures if the confidence and credibility of the community in judicature is to survive. He also relied upon Devinder Kaur Vs. Manmohan Singh and others, 1991 PLJ 539, observing that the limitation to challenge a mutation is 3 years for bringing suit from the date mutation is sanctioned.
On the other hand, counsel for the plaintiff- respondent No.1 has relied upon Ramesh B. Desai and others Vs. Bipin Vadilal Mehta C.R. No. 1358 of 2010 [4] and others, 2008 (1) RCR (Civil) 921, wherein it has been observed that a plea of limitation is a mixed question of law and fact, therefore, unless it becomes apparent from the reading of the petition that the same is barred by limitation the petition cannot be rejected under Order VII Rule 11 (d) CPC. He also relied upon Alka Gupta Vs. Narender Kumar Gupta, AIR 2011 SC 9 observing that a civil suit has to be decided after framing issues and trial permitting the parties to lead evidence on the issues except in cases where the Court or any other law makes an exception like provisions of Order 7 Rule 11 CPC;. Order 9 Rule 2, Rule 3, Rule 5 or Rule 8 CPC or Order 11 Rule 21 CPC (non-compliance with an order to answer interrogatories or for discovery or inspection of documents; under Order 14 Rule 2 CPC relating to bar of jurisdiction of the Court; Order 15 Rule 1 CPC (dismissal of suit on first hearing when it appears that parties are not at issue on any question of law and fact); under Order 15 Rule 4 CPC for failure to produce evidence; dismissal under Order 23 Rule 1 CPC when a suit is withdrawn or settled out of Court.
I have heard counsel for the petitioners as well as counsel for the plaintiff- respondent No.1 at length and carefully gone through the judgments cited by counsel for the petitioners. The judgments cited by counsel for the petitioners are the instances where the judgments were rendered after the parties had litigated till higher Courts on merits by leading evidence. No doubt, the importance has been attached to recording of statement under Order 10 CPC in order to shot down the bogus litigation at earlier stage. In N.V. Srinivasa Murthy's case (supra) following T. C.R. No. 1358 of 2010 [5] Arvindam's case (supra), it will be relevant to reproduce the operative part of the judgment in T. Arvindam's case (supra):-
"The trial Court must remember that if on a meaningful - no formal- reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, the court must nip it in the bud at the first hearing by examining the party searchingly under Order 10 , CPC. An activist judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them."
But in the present case, the plaintiff- respondent has claimed his knowledge of the decrees and mutations impugned by him 30 years after their having come into existence. It will not be appropriate to reject the plaint under Order 7 Rule 11 CPC. The point of limitation will be a mix question of law and fact in the present case but at the same time, it will be imperative on the trial Court to examine the parties at the first hearing as per the directions of the Apex Court in T.Arvindandam's case (supra) and C.R. No. 1358 of 2010 [6] N.V. Srinivasa Murthy's case (supra). The revision petition is dismissed. Parties are directed to appear before the trial Court on February 18, 2012 for proceedings in accordance with law. It is again made clear that dismissal of this petition will not prejudice the rights of the defendant- petitioners, in any manner, while consideration of matter, as per provisions of Order 10 Rule 1 CPC or for the purpose of Order 14 Rule 2 CPC and other legal provisions of CPC.
January 25, 2012 (M.M.S.BEDI) sanjay JUDGE