Patna High Court
I.T.C.Limited vs Shakuntala Devi & Ors on 4 January, 2012
Equivalent citations: 2012 AIR CC 543 (PAT), 2013 (121) AIC (SOC) 17 (PAT), AIR 2012 (NOC) (SUPP) 568 (PAT.), (2012) 2 ICC 344
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.476 of 2005
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I.T.C.Limited
.... .... Petitioner/s
Versus
Shakuntala Devi & Ors
.... .... Opposite Parties.
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Appearance :
For the Petitioner/s : Mr.K.N.Chaubey,Sr.Adv.
Mr. RANJIT KR.DAS
Mr. Jayant Roy Chaudhary
Mr. Rohitabh Das
For the Opposite Parties : Mr. KUMAR UDAY SINGH
Mr. Uday Pratap Singh-1
Mr. Shyamal Prakash
Mr. Rao Kundan Kr.Karmvir
Mr. Rana Vikram Singh
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PRESENT
HONOURABLE MR. JUSTICE V. NATH
V,.Nath,J. The ambit of the jurisdiction of the Court to reject a
plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure
on the ground of bar of the suit by limitation and the validity of
the impugned order passed by the court below deferring the
adjudication in this regard to the time of hearing of the suit are
the primal questions involved in this revision application.
2. Heard the parties at length.
3. This revision application has been filed against the
order dated 06.12.2004 passed by Sub Judge II, Munger in
T.S.No. 20/93 rejecting the petition dated 06.09.1994 filed by
the defendant 1st Set praying for rejection of the plaint under
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
2
Order 7 Rule 11 C.P.C.
4. By order dated 14.12.2007 this revision application
has been admitted for hearing and the submissions on behalf of
the petitioner has been succinctly mentioned in the order.
5. The plaintiff opposite party 1st Set has filed
T.S.No.22/93, wherein the revision petitioner has been
impleaded as defendant 1st party besides other defendants who
are opposite parties 2nd Set to opposite party 6th Set in this
revision application, for the following reliefs:-
(a)The court may be pleased to pass a decree for
eviction against defendant first party from the suit
premises mentioned in Schedule B,C and D and
the defendants first party be directed to vacate the
suit premises within a date fixed by the court
failing which the defendant first party or anybody
whomsoever be found in possession of the suit
premises be evicted through the process of the
court.
(b)The court may be pleased to declare that the
plaintiffs first party has got 16 2/3 paise share
jointly, plaintiff second party has got 8 1/3 paise
jointly and plaintiffs third party, plaintiff No.17 to
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
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23 have got /1/ Anna, plaintiff Nos. 24 to 29 have
got /1/Anna and plaintiff No. 30 to 32 have got /1/
Anna share of /4/Annas share in the suit properties
and a preliminary decree of the plaintiffs /8/ annas
share of partition may be passed against the
defendants second party and third party and
thereafter a survey knowing advocate
commissioner be appointed to partition the suit
property by metes and bounds at the spot and a
final decree may be passed.
(c)The court may further be pleased to declare that
the order passed by the learned D.C.L.R. Sadar,
Munger on 18.08.1987 in Rent Fixation Case No.
01of 76-77 as void, illegal and not binding on the
plaintiffs.
(d) A decree for arrears of rent may be passed as
per account given in Schedule E of the plaint
against the defendants 1st party.
(e)A decree for cost of the suit may be passed
against the defendants.
(f)Any other relief or reliefs may be granted to the
plaintiffs.
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
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6. Shorn of unnecessary details, the plaintiffs' case is
that the plaintiff and the defendant 2nd set and 3rd set are the
owners in joint possession of the suit properties as mentioned in
Schedule B of the plaint. Originally the suit properties were
under the Zamindari of Sah Md. Jhakharia and others and the
ancestor of the plaintiffs as well as the defendant 2nd set and 3rd
set were tenants under them and after the purchase of the suit
properties the name of the ancestor of the plaintiffs was
mutated in the rent roll of the said ex-landlord and rent receipts
were granted to the ancestor of the plaintiffs. In the year 1907
the defendant 1st set was inducted as tenant in a portion of the
suit properties on monthly rental of Rs.89/- per month by the
ancestor of the plaintiff and defendant 2nd set and 3rd set. The
request by the defendant 1st set, later on, to change the tenancy
to a fixed period tenancy had been declined by the ancestor of
the plaintiff but the ancestors of the defendant 2 nd set and 3rd set
agreed to such change and executed a lease deed for a fixed
period of 5 years. The defendant 1st set continued to pay the
monthly rent to the ancestor of the plaintiff and thereafter to the
plaintiff and later on the other portion of the suit property was
also let out to the defendant 1st set by the plaintiff, defendant 2nd
set and 3rd set. A Money Suit No. 10/96 was filed by the
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
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plaintiffs against the defendant 1st set for recovery of arrears of
rent which was compromised wherein defendant 1st set admitted
the claim of the plaintiffs. After the vesting of the estate under
the Bihar Land Reforms Act, 1950 the names of the plaintiffs
were mutated in Register II and the rent receipts were granted.
It has been further stated in the plaint that the defendant 1 st set
filed a petition before the D.C.L.R. for fixation of fair rent
misrepresenting the fact that the plaintiffs were Zamindars and
the suit properties vested in State of Bihar and as the defendant
1st Set was in actual occupation of the suit properties, it was
entitled for fixation of fair rent but by order dated 17.04.1963
passed in Miscellaneous Case No. 05/58-59 the DCLR ,Sadar
Munger rejected the prayer of the defendant 1st set after hearing
the objection of the plaintiff. However after some years the
defendant 1st set filed another petition for fixation of fair rent on
the same grounds and by order dated 18.08.1987 the DCLR,
Sadar Munger allowed the prayer of the defendant 1 st set
without permitting the plaintiffs to adduce evidence even when
they had appeared and filed their objection. It has been asserted
in the plaint that this order passed by the D.C.L.R. is without
jurisdiction. It is the specific case of the plaintiffs that the
defendant 1st is a month to month tenant of the plaintiff and has
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
6
committed default in payment of rent from the month of April,
1976 and is liable for eviction on that ground and so after
serving a notice under Section 106 of T.P.Act determining and
terminating the tenancy of defendant 1st set the, plaintiffs
requested the defendant 1st set to vacate the suit premises and
pay the arrears of rent and the failure of the defendant 1st set to
do so has led the plaintiffs to file the suit with aforementioned
reliefs.
7. The defendant 1st set who is the petitioner in this
revision application, filed a petition on 06.09.1994 praying for
the rejection of plaint besides other grounds mainly on the
ground that the suit with regard to relief no.(c), which is itself
the main relief, is barred by limitation and the plaintiff has no
cause of action for filing the suit. It has been asserted in the
petition that the plaintiffs, on their own assertion, had the
knowledge of the proceeding before the D.C.L.R. and of the
order dated 18.08.87 passed by the said authority in the Rent
Fixation Case No.01/76-77and as such so long as the said order
stands, the plaintiff have no cause of action against the
defendant 1st set to maintain the suit for the other reliefs also. It
has been further asserted that in view of the bar of limitation of
3 years as prescribed in Article 58 of the Limitation Act, the
Patna High Court C.R. No.476 of 2005 dt.26-08-2011
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suit for this relief against the order of the D.C.L.R. is clearly
barred by limitation.
8. Mr.K.N.Chaubey, the learned senior counsel appearing
on behalf of the petitioner, has assailed the impugned order by
contending that the court below has failed to appreciate that the
relief no.(c) seeking declaration of the order dated
18.08.1987passed by the DCLR, Sadar Munger in Rent Fixation Case No.01/76-77 as void and illegal is barred by limitation and in absence of this relief, which cannot be granted, the other reliefs as sought for by the plaintiffs being dependent on the grant of this relief, also can not be granted. The learned senior counsel has submitted that there is clear and specific averments in the plaint that the plaintiffs had the knowledge of the Rent Fixation Case No. 01/76-77 wherein they had appeared and filed their objection and the order dated 18.08.1987 passed in that case was also within the knowledge of the plaintiff and as such the invasion to the right of the plaintiffs over the suit premises started in the year 1976-77 itself and culminated with the passing of the order dated 18.08.1987 by the DCLR, Sadar Munger to the knowledge of the plaintiffs. It has been urged that in view of the provision of Article 58 of the Limitation Act, the right to sue first accrued to the plaintiffs when they Patna High Court C.R. No.476 of 2005 dt.26-08-2011 8 appeared and filed their objection in the Rent Fixation Case No.01/76-77 or at least from 18.08.1987 on which date the final order in the said case was passed but the plaintiff failed to challenge the said order within the prescribed period of limitation of three years and therefore in the present suit of the year 1993 the relief no.(c) as sought by the plaintiffs is clearly barred by the limitation. It has been further submitted that by the order dated 18.08.1987 the D.C.L.R., Sadar Munger had allowed the prayer of the petitioner for fixation of fair rent in its favour after holding that the suit premises besides other lands had vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950 and as such the suit property no more remained the property of the plaintiffs who therefore also cannot claim the other reliefs relating to eviction, partition or arrears of rent. The learned senior counsel has also contended that even with regard to an order which is assailed as void, a declaration will have to be obtained by preferring a suit within the prescribed period of limitation because the nature of the order is not mentioned on its forehead and it will remain effective and operative until declared void or illegal. A large number of decisions have been relied upon to buttress the submissions and the same shall be referred later in this Patna High Court C.R. No.476 of 2005 dt.26-08-2011 9 judgment while discussing the relevant issues.
9. Per contra, Mr.S.S.Dwivedi, the learned senior counsel appearing on behalf of the plaintiffs-opposite parties 1st set as well as Mr.Kumar Uday Singh, the learned counsel appearing on behalf of the opposite party no.42 have contended that the order dated 18.08.1987 was without jurisdiction and therefore nullity and as such the provision of Article 58 will not be attracted. It is their submission that the suit with regard to the other reliefs prayed in the suit is independently maintainable and the order dated 18.08.1987 has no effect on the right, title and interest of the plaintiff over the suit property. It has been urged that no relief with regard to the said order dated 18.08.1987 was required to be sought but even if it has been sought for it would have no consequence. Supporting the impugned order, it is their contention that the objections raised by the defendant 1st set are not sustainable on the basis of the statements made in the plaint and can be adjudicated only on the basis of evidence to be led in the suit.
10. It is by now established that the law of rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure is broadly based upon the "Plea of Demurrer" whereby a demurrer admits the truth of the plaintiff's set of facts, but Patna High Court C.R. No.476 of 2005 dt.26-08-2011 10 contends that the plaintiff cannot get the relief as prayed even on the basis of those facts, either because of the bar of any law or insufficiency inherent therein. The scope and applicability of the provision of Order 7 Rule 11 (d) have been now almost well settled by a number of illumining decisions of the apex court and it will be apt here to refer to the decision in the case of ( Kamala and Others Vs. K.T. E-Shwara Sa ) AIR 2008 SC 3174 where the apex court has laid down as follows:
"...Order VII Rule 11 (d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in plaint... What would be relevant for invoking Clause (d) of Order VII Rule XI of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction..."
It has been further held:
"For the purpose of invoking Order VII Rule 11
(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties could not be Patna High Court C.R. No.476 of 2005 dt.26-08-2011 11 within the realm of the Court at that stage..."
In another decision in the case of (C.Natrajan Vs. Ashim Bai )2007(14) SCC 183, the apex court has similarly held as follows:-
"An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence".
However, while considering the question of rejection of plaint under Order 7 Rule11 C.P.C., the another aspect also has been highlighted by the apex court in (Abdul Gaffur Vs.State of Utrakhand) 2008(10) SCC 97 as follows:-
"If the High court is convinced that the plaint read as a whole does not disclose any cause of Patna High Court C.R. No.476 of 2005 dt.26-08-2011 12 action, it may reject the plaint in terms of Order 7 Rule 11 of the Code. As a matter of fact, as observed by V.R. Krishna Iyer, J.,in T. Arivandandam, 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, the court should exercise its power under the said provision. And if clever drafting has created an illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Order 10 C.P.C. Nonetheless, the fact remains that the suit has to be disposed of either by the High Court or by the Courts Subordinate to it in a meaningful manner as per the procedure prescribed in the Code and not on one's own whims."
In view of the aforesaid principles and also on the basis of the decisions of the apex court on the issue of rejection of plaint under Order 7 Rule 11(d) C.P.C., the following broad principles can be culled out:-
(i) The averments made in the plaint are germane and Patna High Court C.R. No.476 of 2005 dt.26-08-2011 13 have to be taken as correct;
(ii) The whole plaint has to be read not in formal but in a meaningful manner;
(iii) No part of defence or evidence is to be considered
(iv) Being summary in nature, the court should exercise this jurisdiction only when it becomes absolutely certain that the litigation is doomed to fail.
Now keeping in view, these principles the rival contentions of the parties are to be examined.
11. The averments made in the plaint, a copy of which is annexed with the revision application disclose the case of the plaintiffs that they have acquired the title over the suit property by purchase through sale deed and thereafter the defendant no.1 has been inducted as tenant in the suit premises on month to month basis. It is also the case of the plaintiffs that they (plaintiffs) were tenants under the ex-landlord Sah Md.Zakariya and after the purchase, their names were mutated in the rent roll of ex-landlord. The statements with regard to the order dated 18.08.87 passed by the D.C.L.R.in Rent Fixation Case No. 01/76-77 in favour of the defendant 1st set has also been made and the plaintiffs have accepted to have appeared in the said proceeding and filed objection but it has also been submitted Patna High Court C.R. No.476 of 2005 dt.26-08-2011 14 that the said order was without jurisdiction. Significantly nowhere in the plaint there is an averment to show that the plaintiffs were intermediaries (ex-landlord) and the suit properties were part of their intermediary interest. Further there is also no averment that the defendants were granted permanent lease by the plaintiff over the suit properties. The tenancy of the defendant 1st set over the suit properties has been in definite terms stated to be a monthly tenancy and it has been alleged that the defendant 1st set has failed to pay the rent from the month of April, 1976 till the date of filing of the suit.
12. The assertion of the defendant 1st set in his petition under Order 7 Rule 11 C.P.C. praying for rejection of the plaint mainly proceeds on the basis that after the order dated 18.08.87 of the DCLR in the Rent Fixation Case, to the knowledge of the plaintiffs, holding therein that the suit properties have vested in the State of Bihar under the provisions of Bihar Land Reforms Act, 1950, the plaintiffs no more remained the owners of the land and landlord of the defendant 1st set and the said order having been not challenged by the plaintiff within the prescribed period of limitation under Article 58 of the Limitation Act, the relief no.(c) seeking declaration of this order as illegal void and not binding upon the plaintiffs is clearly Patna High Court C.R. No.476 of 2005 dt.26-08-2011 15 barred by limitation. It has been strongly submitted on behalf of the defendant that the order dated 18.08.87 having been passed by a competent authority in presence of the plaintiffs, the same will continue to bind the plaintiffs until set aside or declared void or illegal. The principle laid down in the decision of the apex court in the case of State of Punjab Vs.Gurudeo Singh, 1991(4)SCC 1 has been heavily relied in support of this proposition, which runs as follows:-
"It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for..."
The learned senior counsel for the petitioner has also made a particular reference to paragraph 8 of the aforesaid decision wherein their Lordships have observed as follows:
"But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a Patna High Court C.R. No.476 of 2005 dt.26-08-2011 16 competent body or court. In Smith Vs. EAST Elloe Rural District Council, Lord Radcliffe observed ...1956 A.C.736.
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders..."
13. The copy of the order of order dated 18.08.87 of the DCLR has not been annexed with the plaint, although the same has been annexed with the supplementary affidavit filed in this civil revision application on behalf of the petitioner. It has been urged on behalf of the petitioner, relying upon the decisions reported in AIR 1983 Rajsthan 3,AIR 2000 Bombay 34 and AIR 2000 Punjab & Haryana 44, that the contents of the said order can be looked into while considering the objection of the defendant 1st set under Order 7 Rule 11(d) C.P.C. However, none of these decisions supports this contention of the petitioner. The ratio underlying these decisions is only that the Patna High Court C.R. No.476 of 2005 dt.26-08-2011 17 documents filed alongwith the plaint or the documents referred to in the plaint so as to make them basis of the plaint, forming part of the plaint itself, can be looked into. It has not been laid down that the documents, though referred but not made the basis of the plaint can also be looked into when produced by a defendant in support of his prayer for rejection of the plaint. This position becomes more clear on reading of Rule 14 of Order 7 C.P.C. which runs as follows:-
"1.Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such document in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint."
2. x x x x x
3. x x x x x
4. x x x x x
14. The order of D.C.L.R. has, admittedly, been not filed with the plaint and from the averments of the plaint also it does not appear that the plaintiffs sue upon this document or rely upon the same in support of their claim. As such the prayer of the petitioner to look into the contents of the order of the Patna High Court C.R. No.476 of 2005 dt.26-08-2011 18 D.C.L.R. cannot be acceded to.
15.On the basis of the submissions of the parties it is, at least, clear that the order passed by the DCLR has been passed under the provisions of the Bihar Land Reforms Act, 1950. The DCLR by this order, after holding that the suit property has vested in the State of Bihar, has fixed the rent of the suit premises on the prayer of the defendant 1st set, purporting to exercise his jurisdiction under Section 5 of the said Act. It has been stated in the plaint that earlier to the order dated 18.08.87, the defendant 1st set had filed similar petition before the DCLR requesting to fix and assess the fair rent, by misrepresenting the fact that the plaintiffs were ex-landlords and their property had vested in the State of Bihar but the said petition of the defendant 1st set was rejected by the DCLR by order dated 17.04.1963. It has been further averred in the plaint that a similar petition was again filed by the defendant 1 st set and this time the order dated 18.08.87 have been passed by the DCLR illegally and collusively and the same is without jurisdiction.
16. The Bihar Land Reforms Act, 1950 is a special enactment and from its preamble it is clear that it has been enacted for the purpose "to provide for the transference to the Patna High Court C.R. No.476 of 2005 dt.26-08-2011 19 State of the interests of proprietors and tenure holders". The different provisions of the Act also indicate that the "primary object of the Act was to abolish the Jamindari by acquiring the interest of the proprietor ,tenure holder, under tenure holder and trustees, which have been compendiously described as intermediary in the Act". Section 3 of the Act postulates a declaration by the State Government regarding the vesting of the estate or tenures of a proprietor or tenure holder in the State and Section 4 provides the consequence of the vesting of an estate or tenure in the State. However, the intermediary whose estate has vested, has been made entitled to retain possession of a homestead in his possession on the date of vesting, as a tenant under the State free of rent and if such homestead have been used by the intermediary for the purpose of letting out on rent, he has been made liable to pay fair and equitable ground rent as determined by the Collector as provided under Section 5 of the Act. A Bench of this Court in AIR 1964 Patna 376, has, on interpretation of the words "letting out" occurring in Section 5 of the Act, has excluded the homesteads of the intermediary under a permanent lease and held that the same would not be saved from vesting in the State of Bihar.
17. But the basic question which crops up is as to Patna High Court C.R. No.476 of 2005 dt.26-08-2011 20 whether the provisions of the Bihar Land Reforms Act, 1950 are at all attracted to the facts stated in plaint, taking the same to be true and correct.
18. As already mentioned above, there is no such averment in the plaint that the plaintiffs were the ex-landlord or intermediaries and the suit premises, included in their intermediary interest, had vested in the State of Bihar. Further also there is no mention in the plaint that the defendant 1 st set has been granted permanent lease by the plaintiffs in the suit premises rather it is the specific case of the plaintiffs that the defendant 1st set is their tenant on month to month basis. Moreover, Section 5 of the Bihar Land Reforms Act, on its wordings, are meant for the benefit of an intermediary permitting him to retain his homesteads under certain conditions even after the vesting either free of rent or after fixation of fair and equitable ground rent payable by such intermediary. But by no stretch of interpretation, a tenant of a homestead of an ex-intermediary, be it either a month to month tenant or a tenancy under permanent lease, has been given the right to maintain a petition for fixation of fair and equitable ground rent under this provision. In absence of any averment in the plaint leading to the inference that the plaintiffs were the ex- Patna High Court C.R. No.476 of 2005 dt.26-08-2011 21 intermediaries whose estate, which included the suit properties, had vested and the defendant 1st set has been holding his tenancy under a permanent lease from them, the provisions of Bihar Land Reforms Act, 1950 are not attracted and the authorities under the said Act cannot have jurisdiction over the suit properties or the tenancy of the defendant 1st set. As such, the order dated 18.08.87 of the DCLR passed in Rent Fixation Case No. 01/76-77, under the purported exercise of power under the provisions of the Bihar Land Reforms Act, 1950, appears to be prima facie without jurisdiction and nullity as the whole proceeding before the D.C.L.R. is coram non judice. It will be apt here to notice an observation of the Hon'ble Supreme Court in the case of Dhurndhar Prasad Singh Vs. Jai Prakash University (AIR 2001 SC 2552) where, after referring to the decisions of the House of Lords, their Lordships has observed as follows:
"...This is not an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a court or a tribunal of limited jurisdiction has acted without jurisdiction (coram non judice) can be Patna High Court C.R. No.476 of 2005 dt.26-08-2011 22 determined by considering whether at the out set of the proceedings that court had jurisdiction to entertain the proceeding at all. So much is implicit in the Lord Coke.'s phrase "Jurisdiction of the cause".
In the case of Ajudh Rai Vs. Moti 1991(3)SCC 136, the apex court had the occasion to consider in almost similar circumstances, the question of limitation against an order passed under Section 27(4) of H.P. Abolition of Big Landed Estates and Land Reforms Act. In the said case the defendant had obtained an order under the provisions of the said Special Act although he was only a labourer under the plaintiff and was not entitled as such to the benefits under the provisions of the Act. The plaintiff challenged the order by filing a suit wherein it was held that the defendant was not a sub tenant and hence the order passed in his favour under the said Act was held to be without jurisdiction. While considering the bar of limitation their Lordships have held as follows:
"The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set Patna High Court C.R. No.476 of 2005 dt.26-08-2011 23 aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Act is applicable, the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject matter of a proceeding under a special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, i.e. non-existent in eye of law and it is not necessary to set it aside, and such a suit will be governed by Article 65..."
19. The decision, relied upon on behalf of the petitioner, in the case of State of Punjab Vs. Gurudeo Singh (Supra) is not applicable to the facts of this case. In the said decision, the order under challenge was passed by an authority having the jurisdiction in law over the subject matter and the party. In a later decision in (Madan Kishore Vs. Major Sudhir Sewal)2008 A.I.R. SCW 6251, in a similar circumstance, their Lordships Patna High Court C.R. No.476 of 2005 dt.26-08-2011 24 have followed the decision of Ajudh Rai (Supra) and distinguished the decision of State of Punjab Vs. Surender Singh(Supra) by observing as follows:
"...In our view the High Court was perfectly justified in holding that the said order of the compensation officer was without jurisdiction and that the compensation officer was lacking jurisdiction in holding that the defendant no.1./appellant could be conferred proprietary rights in respect of the suit land under the Act....reliance could be straightway placed on a decision of this Court in the case of Ajudh Raj and Ors.Vs. Moti S/o Mussadi(AIR 1991 SC 1600) in which the High Court had also placed reliance on the impugned judgment....This court held in that decision that the order passed by the compensation officer lacked jurisdiction and, therefore it was a nullity and no order need to be passed by the civil court to set aside such type of order before seeking declaration of title and possession of Patna High Court C.R. No.476 of 2005 dt.26-08-2011 25 the suit land. It is not in dispute that if this position is accepted, the suit filed by the predecessor-in-interest of the respondents was in time as the suit was for possession based on title and, therefore, could be governed by Article 65 of the Limitation Act"
It has been further held:
".....We may refer to a decision of this Court in the case of State of Punjab and Ors, Vs. Gurudev Singh Ashok Kumar(AIR 1991 SC 2219) as the same was relied on by the learned counsel for the appellant to show that the suit was barred by limitation.....
In our view that decision is not applicable to the facts and circumstances of the present case. That suit was filed for declaration that the dismissal of the respondent was wrongful or ultra vires.....
In view of our findings arrived at herein-earlier that the order passed by the compensation officer was a nullity and non-
Patna High Court C.R. No.476 of 2005 dt.26-08-2011 26 est in the eye of law and therefore, without jurisdiction, we do not think that this decision could be applied in facts and circumstances as stated herein-earlier........"
20. Thus in view of the principles abovementioned and taking the averments made in the plaint to be true and correct on their face value, the order dated 18.08.87 passed by the DCLR appears to be without jurisdiction and nullity. The facts mentioned in the said order of the DCLR and also those raised by the defendant 1st set in his petition under Order 7 Rule 11 C.P.C. cannot be considered at this stage. In order to successfully sustain his objection that the suit is barred by limitation with regard to relief No.(c) which according to him is the main relief, the defendant 1st set will have to plead and prove by leading evidence in course of hearing of the suit that the plaintiffs were in fact intermediaries and the suit properties were included in their intermediary interest over which the defendant 1st set had been granted a permanent lease by the plaintiffs and the same had vested in the State of Bihar under the provision of Bihar Land Reforms Act, 195. The relief no.(c) as prayed by the plaintiff is held to be of no consequence at this stage entailing rejection of the plaint. This view is supported by Patna High Court C.R. No.476 of 2005 dt.26-08-2011 27 the observation of the apex court in State of Maharastra Vs. Pravin Jethalal Kamdar(AIR 2000 SC 1099) as under:
"Thus it has not been and cannot be disputed that the order dated 26th May, 1976 was made out without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence..."
21. To conclude, it is held, on the basis of foregoing reasons and discussion, that the suit with regard to relief No.(c) (supra) cannot be held to be barred by limitation on the basis of averments of the plaint and consequently the plaint can not be rejected under the provision of Order 7 Rule 11 (d) of the Code of Civil Procedure. The impugned order does not suffer from any illegality or jurisdictional error. The civil revision application is, accordingly, dismissed. However, it is made clear that the observations in this order have been made for the limited purpose of adjudicating the prayer under Order 7 Rule 11 C.P.C. and shall not, in any manner, prejudice the Patna High Court C.R. No.476 of 2005 dt.26-08-2011 28 cases of either of the parties at the time of hearing and final disposal of the suit. In the facts and circumstances of the case, there shall be no order as to costs.
( V. Nath, J.) Patna High Court, Patna.
Dated:The 4th of January, 2012.
Nitesh/N.A.F.R.