Allahabad High Court
Mudit Verma (U/A 227) vs Ram Kumar & Anr on 4 July, 2018
Equivalent citations: 2019 (1) ALJ 178, (2018) 190 ALLINDCAS 872 (ALL), (2018) 141 REVDEC 791, (2019) 1 CIVILCOURTC 484, (2018) 2 ALL RENTCAS 820, (2018) 130 ALL LR 288, 2018 (8) ADJ 52 NOC
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Judgment Court No. - 19 Case :- MISC. SINGLE No. - 7433 of 2015 Petitioner :- Mudit Verma (U/A 227) Respondent :- Ram Kumar & Anr Counsel for Petitioner :- Jaspreet Singh Counsel for Respondent :- Ashok Kumar Maurya,Brajesh Kumar Yadav,Mayank Pandey,Prem Shanker Shukla,Rakesh Kumar Srivastava,Suresh Chandra Shukla,Suresh Chandra Verma Hon'ble Vivek Chaudhary,J.
1. Present petition is filed by the petitioner-defendant challenging the order dated 28.05.2012 passed by the Additional Civil Judge (Junior Division), Lucknow and order dated 07.08.2015 passed by the Additional District Judge, Court No.1, Lucknow. By the first order, learned Additional Civil Judge has rejected an application filed by the petitioner-defendant under Order 7 Rule 11 of the C.P.C. and by the second order, learned Additional District Judge has affirmed the order of learned Additional Civil Judge and rejected the civil revision also.
2. Facts of the case, as set up by the petitioner-defendant, are that a sale deed was executed on 08.01.1974 by late Sri Bechu, with regard to agricultural plots no. 234 and 249 situated at Village-Vijaipur, P.S, Gomtinagar, Pargana, Tehsil and District Lucknow, in favour of petitioner-defendant and late Sri Servendra Shekhar Singh, his brother. On the basis of the said sale deed, by order dated 31.08.1974 passed by the revenue authorities, names of petitioner-defendant and his brother were duly mutated in the revenue records. In the year 1984 the State Government acquired the said two plots along with other surrounding lands and in the year 1985 an award was also made. Sri Bechu expired on 10.05.1999. No objection to the sale deed or mutation was ever made by Sri Bechu till he expired. After about 12 years of his death and after 37 years of execution of the sale deed, his sons, namely Sri Ram Kumar and Om Prakash, respondents-plaintiffs filed a Regular Suit No.112 of 2011, claiming that the said sale deed executed on 08.01.1974 is a forged document and does not contain the thumb impression of their late father. They prayed for: (a) cancellation of the sale deed dated 08.01.1974 and (b): "a decree for permanent injunction restraining the defendant, his heirs, agent and any person claiming rights through him, for interfering the peaceful possession of the plaintiffs and from dispossessing the plaintiffs from the land in suit". The plaint was filed on 27.01.2011. Relevant paragraphs of the plaint, for our purposes, are as follows:-
"6. That when this fact came into knowledge of the plaintiffs regarding the names of the defendant and his Late brother Servendra Shekhar Singh entered in the revenue records, then they moved an application for recall of the order of mutation in the Court of Tehsildar Lucknow but the same was rejected by Tehsildar Lucknow on 22.04.2008 (Twenty Two April Two Thousand Eight), against the said order the plaintiffs have filed an appeal in the court of S.D.O. Lucknow which is pending for final disposal.
7. That the real brother of the defendant Servendra Shekhar Singh died and it has come to the knowledge of the plaintiffs that the said Servendra Shekhar Singh died unmarried.
8. That on 10.07.2009 (Ten July Two Thousand Nine), the defendant along with associates came at the aforesaid plots of the land of the plaintiffs, tried to make constructions over the said plots of land, the plaintiff No.1 reached at the plots and objected the acts of the defendants, the defendant abused the plaintiff No.1 in a filthy language and threatened the plaintiff No.1 to do away his life, if he intervened into the matter but on the intervention of the village people the defendant along with associates ran away. Thereafter the plaintiff No.1 moved applications to the Chief Minister, S.P. Lucknow and Inspector P.S. Gomtinagar, Lucknow but no action has been taken by the police of P.S. Gomtinagar, Lucknow. When this act came in the knowledge of the defendant that the plaintiff No.1 moved applications against the defendant, then again on 31.07.2009 (Thirty One July Two Thousand Nine) the defendant along with another person entered into the house of the plaintiffs and beaten the plaintiff No.1, abused in a filthy language and threatened the plaintiff No.1 that if he will not pressed his applications, the defendant will to do away the life of the plaintiff No.1 and shall burn the entire family.
9. That when no action has been taken by the police, the plaintiff No.1 moved an application under Section 156 (3) Cr.P.C. in the proper court of law on 07.08.2009 (Seven August Two Thousand Nine). On the said application the Court No.36 passed an order on 27.08.2009 (Twenty Seven August Two Thousand Nine) and through this order the Hon'ble Court directed S.O. Gomtinagar, Lucknow to register the case against the accused persons and to investigate into the matter. Against the said order, the defendant has not filed any revision but D.G.C. Criminal filed revision in the court of District and Sessions Judge, Lucknow now which is pending in the court of special judge S.C.S.T. act Lucknow. In the said revision on behalf of revisionist the photocopy of the aforementioned sale deed had been filed on 04.06.2010 (Four June Two Thousand Ten), then the plaintiffs have got the knowledge of the sale deed in question, getting the knowledge of the said sale deed, the plaintiff No.1 applied for certified copy of the same and he got the certified copy of the said sale deed on 11.01.2011 (Eleven January Two Thousand Eleven), thereafter the plaintiffs have got knowledge of the sale deed and its contents prior to this the plaintiffs have got no knowledge of the sale deed in question. The plaintiffs have already mentioned above that the said sale deed is forged one. The father of the plaintiffs had never executed the alleged sale deed and nor he put his thumb impression on the said sale deed. The defendant and his brother Late Servendra Shekhar Singh had got prepared the said sale deed in question and produced any other person before the Sub-registrar in place of father of the plaintiffs for the purposes of registration and as such by fraudulence means they got it registered in their favour.
10. That the father of the plaintiffs before his death had told to the plaintiffs that he had not executed any sale deed nor he put his thumb impression or any sale paper.
11. That the father of the plaintiffs was by caste Harijan (Pasi) the plaintiffs are also Harijan (Pasi) by caste, poor and illiterate persons. The plaintiffs are enjoying peaceful possession as a owners and land lords over the said plots of land. The father of the plaintiffs had made plantation of Eucalyptus trees over the said plots of land and the said trees now grown up and still are standing over the said plots of land.
17. That the cause of action accrued to the plaintiffs and against the defendant on 10.07.2009 (Ten July Two Thousand Nine) when the defendant came at the plots of land in question and tried to make constructions over it, on 31.07.2009 (Thirty One July Two Thousand Nine) when the defendant entered into the house of the plaintiffs, abused and threatened the plaintiff No.1 with dire consequences and on 04.06.2010 (Four June Two Thousand Ten) when the revisionist in criminal revision No.300/09 filed the photocopy of the disputed sale deed and on 11.01.2011 (Eleven January Two Thousand Eleven) when the plaintiff No.1 obtained the certified copy of the disputed sale deed mentioned above in village Vijaipur P.S. Gomtinagar Pargana, Tehsil & District Lucknow within the territorial jurisdiction of this Hon'ble Court."
3. The petitioner-defendant filed an application under Order 7 Rule 11 CPC on 11.02.2011. In his application petitioner-defendant took objection with regard to the suit being barred by limitation, as it was instituted after more than 37 years of the execution of the registered sale deed executed on 08.01.1974. Another objection taken was that the suit is abuse of process of law and same is a frivolous and vexatious litigation and hence, the plaint ought be rejected outright. Petitioner-defendant also filed an application under Order 10 CPC read with Order 19 CPC on 27.04.2012. In the said application, petitioner-defendant also alleged that respondents-plaintiffs have concealed government notification with regard to acquisition of the land and court is bound to take judicial notice thereof. In the application, petitioner-defendant stated that notifications under Section 4 read with Section 17 of the Land Acquisition Act and Section 6, were issued on 04.12.1984 and an award was made on 25.02.1987. He submits that thereafter in the Khatauni, the possession of Ujarioan Aavasiya Yojana, i.e., the name of the scheme for which the land was acquired, is noted and these facts have been concealed by the respondents-plaintiffs. He prayed that the respondents-plaintiffs be summoned for getting their statement recorded under Order 10 CPC.
4. Objections were filed by the respondents-plaintiffs on 14.04.2011 against Order 7 Rule 11 CPC application of the petitioner-defendant. It was claimed that the suit is within limitation from the date of knowledge of the plaintiffs. Objections dated 30.04.2012 were also filed by the respondents-plaintiffs against the application filed under Order 10 of the CPC. In their objections, respondents-plaintiffs denied of having any knowledge of any notification, award or proceedings of acquisition. They further claimed that the land was in their possession.
5. By order dated 28.05.2012 the Trial Court considered and rejected the application filed under Order 7 Rule 11 CPC, holding that on perusal of the plaint it can not be said that the same is barred by limitation. The court found that issue of limitation cannot be decided at this stage. It is noteworthy that the trial court did not pass any order on application of the petitioner-defendant under Order 10 CPC for summoning the respondents-plaintiffs. The revisional court also rejected the revision of the petitioner-defendant, again finding that the objections raised by the petitioner-defendant can only be decided after evidence and are not covered within the scope of Order 7 Rule 11 of the CPC.
6. Learned counsel for petitioner-defendant strongly argued that the suit is filed by the respondents-plaintiffs by making serious concealments of facts which were within their knowledge. Strong reliance is placed upon the judgment of the Supreme Court in case of SP Chengalvaraya Naidu Vs. Jagannath;(1994) 1 SCC page 1. He further submits that a perusal of the plaint shows that it is nothing but a vexatious drafting, concealing the relevant facts, and therefore liable to be rejected under Order 7 Rule 11 of the CPC. On the other hand, learned counsel for respondents-plaintiffs have argued that for the purposes of Order 7 Rule 11 CPC, only the plaint can be looked into and the documents filed by the petitioner-defendant cannot be considered by the Court and, therefore, looking into the plaint allegations, the same cannot be rejected. It is submitted that only after the issues are framed and evidence is led by the parties, the Court can decide with regard to the objection on limitation and other objections raised by petitioner-defendant. Reliance is placed upon AIR 2008 SCC 363 C. Natrajan Vs. Ashim Bai.
7. The respondents-plaintiffs, as noted above, have sought two reliefs in the plaint. First is of cancellation of the said deed and second of permanent injunction restraining petitioner-defendant from interfering in their possession. In paragraph-6 of the plaint, respondents-plaintiffs have stated that "When this fact came into knowledge of the plaintiffs regarding the names of the defendant and his Late brother Servendra Shekhar Singh entered in the revenue records, then they moved an application for recall of order of mutation in the court of Tehsildar Lucknow but the same was rejected by Tehsildar Lucknow on 22.04.2008 (Twenty Two April Two Thousand Eight), against the said order the plaintiffs have filed an appeal in the Court of S.D.O. Lucknow which is pending for final disposal." The mutation admittedly had taken place on 31.08.1974 on the basis of alleged sale deed dated 08.01.1974. The fact as to when respondents-plaintiffs got knowledge of mutation and, therefore, the knowledge of the alleged sale deed is nowhere stated in the said paragraph. Definitely, the recall application was filed prior to 22.04.2008, as on 22.04.2008 the said application stood dismissed. Therefore, facts stated in paragraph-6 of the plaint appear to be in conflict with the facts stated in paragraph-17 of the plaint. So far as the second relief is concerned, in paragraph-17 of the plaint, the respondents-plaintiffs plead that cause of action accrued when the petitioner-defendant on 10.07.2009 interfered in possession of the respondents-plaintiffs. So far as, cancellation of sale deed is concerned, in the same paragraph, respondents-plaintiffs stated that they came into knowledge of the sale deed only when the photocopy of the sale deed was filed in Criminal Revision No.300/2009 on 11.01.2011 and when plaintiff no.1 obtained a certified copy of the same.
8. Certain facts about this case are peculiar. The suit is filed after 37 years of the sale deed being executed. Immediately after the sale deed was executed, on its basis, the names of purchasers were mutated by the revenue authorities in the revenue records. The executant of the sale deed continued to live for around 25 years after its execution and mutation. He never challenged either the mutation or the sale deed during his life time. It is also claimed that the land was acquired after around ten years of the sale deed. Respondents-plaintiffs state that they have absolutely no knowledge with regard to the acquisition proceedings. They have not filed any document or other evidence, as basis of the suit, with regard to their possession, which they claimed that they have maintained for last 37 years and more. Therefore, in the given facts, how should the Civil Court proceed with the matter? What is the duty of the Court in such circumstances? Law in this regard is settled by the Supreme Court in number of decisions. Reference may be made to:-
(i) T. Arivandandam Vs. T.V. Satyapal and Another; (1977) 4 SCC 467. In paragraph-5 of the said judgment, the Court held:-
"5. ............The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Or. VII Rule 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. 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............."(emphasis added)
(ii) Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others; (2004) 3 SCC 137. In paragraph 17 of the aforesaid judgment, Supreme Court held:-
"17. ............................. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised." (emphasis added)
(iii) In Popat and Kotecha Property Vs. State Bank of India Staff Association; (2005) 7 SCC 510, in paragraph-20 again, the Court takes exactly the same view.
(iv) I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others ; (1998) 2 SCC page 70, in paragraph-16 of which, the Court had stated:-
"16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. (See T. Arivandandam Vs. T.V. Satyapal5 )"
(v) Raj Narain Sarin (Dead) Through LRs. and Others Vs. Laxmi Devi and Others; (2002) 10 SCC 501, after considering the facts in the concluding paragraphs-8, the Court held:-
"8. ................................... The plaint is totally silent on that score, though, however, the existence of the deed of sale noticed above stands accepted by the plaintiff. The litigation, in our view, cannot but be termed to be utterly vexatious and abuse of the process of court, more so by reason of the fact that the deed of sale being executed as early as 1941 stands unassailed for a period of over 50 years. The decision of this Court in T. Arivandandam1 has its due application and having regard to the decision as noticed above and upon consideration of the relevant provisions as engrafted in the Code itself, we have no hesitation in accepting the order of the learned Additional District Judge...................."(emphasis added)
(vi) Further reference may be made to the case of Maria Margarida Sequeira Fernandes and Others Vs. Erasmo Jack De Sequeira (Dead) through L.Rs. 2012 (5) SCC 370. In this case the Supreme Court has laid down at length the duty of the Court in finding of the truth and also with regard to the pleadings and the manner in which they are to be made by the parties. Relevant paragraphs of the said judgment are:-
"32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
37. Lord Denning, in the case of Jones v. National Coal Board [1957] 2 QB 55 has observed that:
"In the system of trial [that we] evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of [the] society at large, as happens, we believe, in some foreign countries."
38. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
40. World over, modern procedural Codes are increasingly relying on full disclosure by the parties. Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.
41. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.
51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth. "
9. So far as the pleadings are concerned, again in the aforesaid judgment, Supreme Court has cast duty upon the Courts to be particular about the same. Reference may be made to the following paragraphs:
"61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
77. The Court must ensure that pleadings of a case must contain sufficient particulars. Insistence on details reduces the ability to put forward a non-existent or false claim or defence. In dealing with a civil case, pleadings, title documents and relevant records play a vital role and that would ordinarily decide the fate of the case."(emphasis added)
10. In view of the law settled by the Supreme Court in the aforesaid cases, it becomes the duty of the Court to look into the facts of the case and to ascertain as to whether the plaintiff has come with complete facts and clean hand before the Court. The powers under Section 30 as well as Chapter-X of the CPC can be exercised by the Court for the said purposes. The duty casted upon the court in the aforesaid judgments has to be exercised more cautiously, especially in cases where there is a long delay in raising a dispute or there are other similar special circumstances casting a doubt upon the case as set up by the plaintiff in his plaint. Present case definitely falls in the category of such cases for the reason that a sale deed is being challenged after a long delay of 37 years of its execution; while the sale deed was immediately made public and put to use by getting the names mutated in the revenue records, (both in record of rights and record of possession); the executant of the sale deed lived for 25 years after the execution of the sale deed and mutation in the revenue records took place but he never disputed the same and respondents-plaintiffs have not filed any document to prove that they have remained in possession. More so, they submit before the Court that they do not even know as to whether the land in dispute has been acquired around 25 years back or not. This is not normal conduct of a human being. It is surprising that a person is denying any knowledge about the status of land for the last 37 years but is claiming possession over the same, while the record speaks otherwise. Thus, this was a case where the trial court had to be particular to exercise its power under Section 30 read with Chapter-X of the CPC. It is surprising that both the courts below rejected the application under Order 7 Rule 11 without even considering the application filed under Order 10 of the CPC by the petitioner-defendant or by itself calling upon the respondents-plaintiffs, to find out the true facts of the matter.
11. This Court called upon the respondents-plaintiffs to file application which was moved by them before the revenue court, i.e., court of Tehsildar Sadar, Lucknow, for recall of mutation order dated 31.08.1974. The respondents-plaintiffs have filed a supplementary counter affidavit dated 07.05.2018 annexing therewith the said recall application dated 17.12.2007. The recall application refers to four annexures to the same, however, again respondents-plaintiffs chose not to file any of the annexures and preferred to file incomplete application. Petitioner-defendant immediately filed a supplementary affidavit dated 14.05.2018 and filed the complete set of said application along with all the annexures. No reply or denial to the same is filed and during course of argument and the annexures of the said application, as filed by defendant petitioner, were duly admitted by the respondents-plaintiffs. The said recall application was filed on 17.12.2007 under Section 200, 201 of U.P. Land Revenue Act for recall of order dated 31.08.1974. In paragraph-7 it specifically states that on 12.10.2007, an application was submitted to the District Magistrate/Collector, Lucknow, SSP, Lucknow and SHO Gomti Nagar, Lucknow through registered post. Copy of the said application dated 12.10.2007 and registered receipts thereof are filed as annxure-2 to the recall application. Paragraph-2 of the said application dated 12.10.2007 specifically states :यह कि मुदित वर्मा व सर्वेन्द्र शेषर सिंह ने प्रार्थी की ज़मीन से प्रार्थी को बेदखल कर दिया है" (That Mudit Verma and Servendra Shekhar Singh have dispossessed the applicants from the land of the applicants). Again in prayer clause, respondents-plaintiffs prayed that the collector may get the land returned to the respondents-plaintiffs. Therefore, in the very first legal action taken by the respondents-plaintiffs, there is categorical admission on part of respondents-plaintiffs that they are not in possession and it is the petitioner-defendant and his brother who have ousted them from the land in dispute.
12. The respondents-plaintiffs have taken an absolutely contrary stand in their plaint, to the stand taken in application dated 12.10.2007. Aforesaid application dated 12.10.2007 has been concealed by them in their plaint. They could not have concealed the said aspect of the matter, which is their own admission of not having possession of the property in dispute, at the very first stage of coming to know of any dispute. It was the duty of the respondents-plaintiffs to disclose and explain the application dated 12.10.2007 in their plaint. Even in case, the facts stated in the said application were wrongly made, under a mistake or otherwise, it was the duty of the respondents-plaintiffs to come clean before the Court, refer to the same and thereafter explain the same. It was not open for them to conceal the said facts and plead contrary. Therefore, there is a serious concealment of fact made by the respondents-plaintiffs in their plaint which goes to the root of the dispute.
13. There is still another aspect. In the said first application made by the respondents-plaintiffs on 12.10.2007 to the District Magistrate/Collector, Lucknow, they specifically stated that their father had not executed any sale deed and had not put any thumb impression. Mutation order was made on the basis of sale deed on 31.08.1974. An application to recall the order dated 31.08.1974 was made on 17.12.2007. Therefore, on 12.10.2007 as well as on 17.12.2007, plaintiffs were aware that there is a sale deed dated 08.01.1974 in existence claimed to be executed by their father and mutation on the basis of the same has already taken place in the year 1974. Thus, they cannot claim that they were not aware of the sale deed dated 08.01.1974. Respondents-plaintiffs were also aware that the alleged sale deed is claimed to be executed by their father himself and not through any power of attorney. They were also aware that it contains forged thumb impression of their father and not signature or thumb impression of any power of attorney. The said facts could be known by them only on perusal of the sale deed. They could not have claimed that the sale deed contains thumb impression of their father and further the same is forged without perusing the sale deed itself. If they were aware of the said sale deed on 12.10.2007 or on 17.12.2007, the limitation for filing a suit for cancellation of the said sale deed starts running from the aforesaid dates. The suit is filed on 27.01.2011, i.e., after three years from both the aforesaid dates. The date 11.01.2011, given in paragraph-17 of the plaint, is not the date on which the respondents-plaintiffs for the first time came to know about the said sale deed. They came to know of the alleged sale deed dated 08.01.1974 and the mutation order dated 31.08.1974 much prior in time. They were aware that a sale deed dated 08.01.1974 exists in name of defendant petitioner and his brother, which is duly registered and on the basis of which mutation had already taken place and therefore filed an application for recall of the mutation order dated 31.08.1974. Though, even before the said recall application dated 17.12.2007, respondents-plaintiffs move an application to the District Magistrate/Collector, Lucknow and other officers on 12.10.2007 also, however, definitely while moving the recall application, they were well aware that there is a sale deed dated 08.01.1974 in existence claimed to be executed by their father and on the basis of the said sale deed, mutation had taken place on 31.08.1974. Therefore, it is expected, as bona fide and diligent litigants from the respondents-plaintiffs, that they would immediately get a copy of the said sale deed and take steps for cancellation of the same.
14. The respondents-plaintiffs, therefore, had knowledge of the alleged sale deed on 12.10.2007, when they moved an application before the District Magistrate/Collector, Lucknow or at least on 17.12.2007, when they moved an application before the revenue court for recall of the mutation order dated 31.08.1974. It cannot be understood as to how the respondents-plaintiffs claim that they filed the recall application before the revenue court claiming that the sale deed executed by their father is forged and fraudulent without looking into the said sale deed. The revenue court while rejecting the said application has specifically noted that the mutation had taken place on the basis of a registered sale deed. respondents-plaintiffs cannot take benefit of not taking required immediate steps by getting a copy of the sale deed from the office of the Sub-registrar. It is not a case where the sale deed was executed before a Sub-registrar of any other city. The sale deed was executed before the Sub-registrar where the property was situated. It was very easy for the respondents-plaintiffs to be a cautious litigants and get a copy of the sale deed as they were aware of the date of sale deed as well as the names of the parties and details of the property.
15. Looking into the above it is found that the respondents-plaintiffs got the knowledge of the sale deed at least in the year 2007 and the suit was filed on 27.01.2011. Therefore, the same is filed after three years from the date the respondents-plaintiffs got the knowledge of the sale deed. Therefore, on the face of it, the suit is barred by limitation.
16. From the facts noted above, it is also clear that the respondents-plaintiffs made serious concealment regarding possession in his plaint. In a suit for injunction, possession is of great relevance. Plaintiff cannot be permitted to make a false statement or conceal true facts from court with regard to same. What is the effect of the said serious concealment with regard to possession made from the Court? Such a question came for consideration before the Supreme Court, besides the afroresaid cases, in case of S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs. and Others, reported in (1994) 1 SCC 1. In the said case, the plaintiffs concealed the fact of execution of a release date from the Court which came in knowledge of the Court later. In paragraph 5 and 6, the Supreme Court held:-
"5. ........................... We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
6. ....................................A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party. " (Emphasis added)
17. Therefore, for the said concealment also, this Court is bound to throw out the plaint of the respondents-plaintiffs at the very outset. Respondents-plaintiffs who have not come to the court with clean hands are not entitled to any relief from the Court.
18. Learned counsel for the respondents-plaintiffs tried to argue before this Court that while hearing an application under Order 7 Rule 11, Court can only look into the legislative law and it cannot look into the law settled by the Court, as the phrase used in Order 7 Rule 11(d) is "plaint to be barred by any law". His submission is that the term 'barred by any law' would be only legislative law. Such interpretation cannot be accepted. The law means legislative law as well as the law declared by the Courts. This aspect was considered and decided by the Supreme Court in case of Bharvagi Constructions and Another Vs. Kothakapu Muthyam Reddy and Others, reported in 2017 (35) LCD 2505: 2017 SCC On Line 1053, where a similar objection was raised and the Court held that it is the law declared by the Court, which is also covered under the expression occurring in Order 7 Rule 11(d) of the Court. Relevant paragraphs of the said judgment are as follows:-
"32. The question as to whether the expression "law" occurring in clause(d) of Rule 11 of Order 7 of the Code includes "judicial decisions of the Apex Court" came up for consideration before the Division Bench of the Allahabad High Court in Virender Kumar Dixit Vs. State of U.P., 2014(9) ADJ 1506. The Division Bench dealt with the issue in detail in the context of several decisions on the subject and held in para 15 as under:
"15. Law includes not only legislative enactments but also judicial precedents. An authoritative judgment of the Courts including higher judiciary is also law."
33. This very issue was again considered by the Gujarat High Court (Single Bench) in the case of Hermes Marines Limited Vs. Capeshore Maritime Partners F.Z.C. & Anr. (unreported decision in Civil Application (OJ) No.144 of 2016 in Admiralty Suit No.10 of 2016 decided on 22.04.2016). The learned Single Judge examined the issue and relying upon the decision of the Allahabad High Court quoted supra held in Para 53 as under:
"53. In the light of the above discussion, in the considered view of this Court, it cannot be said that the term "barred by any law" occurring in clause(d) of Rule 11 of Order 7 of the Code, ought to be read to mean only the law codified in a legislative enactment and not the law laid down by the Courts in judicial precedents. The judicial precedent of the Supreme Court in Liverpool & London Steamship Protection and Indemnity Association Vs. M.V. Sea Success, 2004(9) SCC 512 has been followed by the decision of the Division Bench in Croft Sales & Distribution Ltd. vs. M.V. Basil, 2011(2) GLR 1027. It is, therefore, the law as of today, which is that the Geneva Convention of 1999 cannot be made applicable to a contract that does not involve public law character. Such a contract would not give rise to a maritime claim. As discussed earlier, the word ''law' as occurring in Order 7 Rule 11(d) would also mean judicial precedent. If the judicial precedent bars any action that would be the law."
34. Similarly, this very issue was again examined by the Bombay High Court (Single Judge) in Shahid s. Sarkar & Ors. Vs. Usha Ramrao Bhojane, 2017 SCC OnLine Bom 3440. The learned Judge placed reliance on the decisions of the Allahabad High Court in Virender Kumar Dixit Vs. State of U.P. (Supra) and the Gujarat High Court in Hermes Marines Limited (supra) and held as under:
"18................The law laid down by the highest court of a State as well as the Supreme Court, is the law. In fact, Article 141 of the Constitution of India categorically states that the law declared by the Supreme Court shall be binding on all Courts within the territories of India. There is nothing even in the C.P.C. to restrict the meaning of the words "barred by any law" to mean only codified law or statute law as sought to be contended by Mr. Patil. In the view that I have taken, I am supported by a decision of the Gujarat High Court in the case of Hermes Marines Ltd....................................."
"19. One must also not lose sight of the purpose and intention behind Order VII Rule 11(d). The intention appears to be that when the suit appears from the statement in the plaint to be barred by any law, the Courts will not unnecessarily protract the litigation and proceed with the hearing of the suit. The purpose clearly appears to be to ensure that where a Defendant is able to establish that the Plaint ought to be rejected on any of the grounds set out in the said Rule, the Court would be duty bound to do so, so as to save expenses, achieve expedition and avoid the court's resources being used up on cases which will serve no useful purpose. A litigation, which in the opinion of the court, is doomed to fail would not further be allowed to be used as a device to harass a Defendant......................."
35. Similarly, issue was again examined by the High Court of Jharkhand(Single Judge) in Mira Sinha & Ors. Vs. State of Jharkhand & Ors., 2015 SCC OnLine Jhar.4377. The learned Judge, in paragraph 7 held as under:
"7. In the background of the law laid down by the Hon'ble Supreme Court, it is apparent that Order VII Rule 11(d) C.P.C. application is maintainable only when the suit is barred by any law. The expression "law" included in Rule 11(d) includes Law of Limitation and, it would also include the law declared by the Hon'ble Supreme Court........."
36. We are in agreement with the view taken by Allahabad, Gujarat, Bombay and Jharkhand High Courts in the aforementioned four decisions which, in our opinion, is the proper interpretation of the expression "law" occurring in clause (d) of Rule 11 of Order 7 of the Code. This answers the first submission of the learned counsel for the respondents against the respondents." (Emphasis added)
19. In view of aforesaid law settled by the Supreme Court, the plaint is liable to be rejected on both the grounds, i.e., being barred by law of limitation and on plain reading of the plaint itself, under Order 7 Rule 11(d) of the CPC, as well as on ground that the plaint is filed by playing fraud upon the Court by making concealment of relevant facts from the Court.
20. Thus, the present petition and application under Order 7 Rule 11 both are allowed and the plaint is rejected.
Order Date :-04.07.2018 Arti/-
(Vivek Chaudhary,J.)