Rajasthan High Court - Jaipur
Pratap Singh Choudhary S/O Shyoji Ram vs Mahadev S/O Late Shri Suwa Lal on 1 April, 2022
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 357/2021
Pratap Singh Choudhary S/o Shyoji Ram, Aged About 34 Years,
Resident Of Plot No. 2-N, Opposite Pashu Chikitsalaya, Phulera,
District Jaipur (Raj.) Presently Resident Of Farm Track, Tractor
Keshupura, Village Post Bhankrota, Ajmer Road, Jaipur.
----Appellant/Plaintiff
Versus
1. Mahadev S/o Late Shri Suwa Lal, aged about 61 years,
Resident Of Village Rasulpura, Presently residing at
Village Bhadarpura, Tehsil Phulera, District Jaipur.
2. Mooli Devi W/o Shrikrishna, Resident of Village Rasulpura,
Tehsil Phulera, District Jaipur.
3. Mool Chand S/o Shrikrishna, R/o Village Rasulpura, Tehsil
Phulera, District Jaipur.
4. Smt Santosh W/o Shri Mahadev, R/o Bhadarpura, Krishna
Filling Centre, Tehsil Phulera, District Jaipur.
5. Sheoji S/o Late Shri Suwa Lal, R/o Village Rasulpura,
presently residing at Plot No. 2, New Colony, Opposite
Pashu Chikitsalaya, Phulera Sambhar Road, Phulera,
District Jaipur (Raj.)
6. Smt Jeevani Devi W/o Shri Sheoji, R/o Village Rasulpura,
presently residing at Plot No. 2, New Colony, Opposite
Pashu Chikitsalaya, Phulera Sambhar Road, Phulera,
District Jaipur (Raj.)
7. Smt. Usha Choudhary D/o Shri Sheoji, W/o Shri Yuvraj
Choudhary, R/o of Plot No. 2, New Colony, Opposite
Pashu Chikitsalaya, Phulera Sambhar Road, Phulera,
District Jaipur (Raj.)
8. Shri Kailash Choudhary S/o Shri Sheoji, R/o Village
Rasulpura, presently residing at Plot No.2, New Colony,
Opposite Pashu Chikitsalaya, Phulera Sambhar Road,
Phulera, District Jaipur (Raj.)
9. Shri Sube Singh Choudhary S/o Begraj Choudhary, aged
about 62 years, R/o 299-B/45, Ram Nagar, Pushkar Road,
Ajmer District Ajmer (Raj.)
10. State Of Rajasthan Through Tehsildar Phulera, Tehsil
Office Phulera Headquarter Sambharlake, District Jaipur.
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11. Municipal Board, Phulera Through Its Executive Officer,
District Jaipur.
----Respondents/Defendants
For Appellant(s) : Mr. R.K. Mathur, Sr. Advocate with Mr. Ram Pratap For Respondent(s) : Mr. JP Goyal, Sr. Advocate with Mr. Amit Jindal, Advocate Mr. Anurag Shukla, Advocate Mr. Shovit Jhanjharia, Advoate HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment Date of Judgment :: 1/04/2022 This Civil First Appeal has been filed by the appellant- plaintiff (for short, 'the plaintiff') against the order dated 14.9.2021 passed by Addl. District Judge No.2, Sambhar Lake, District Jaipur (for short, 'the trial court') in Civil Suit No. 8/2020 (4/2019), whereby the applications filed by the respondents- defendants no. 1 to 4 and 9 (for short, 'the defendants') under Order 7 Rule 11 CPC have been allowed and the suit filed by the plaintiff for declaring the judgment and decree dated 5.3.1998 as also the sale deed dated 15.2.2019 as null and void, partition declaration and permanent injunction has been dismissed.
Facts of the case are that the plaintiff filed a civil suit against the defendants for declaring the judgment and decree dated 5.3.1998 passed by ADJ, Sambhar Lake in Civil Suit No. 8/1997 as null and void, for declaring the sale deed dated 15.2.2019 as null and void, for partition, declaration and permanent injunction, wherein it was averred that the plaintiff and defendants are the successors of late Shri Suwa Lal Ji Jat, R/o village Rasulpura, Tehsil Phulera, Distt. Jaipur. Plaintiff and (Downloaded on 08/04/2022 at 08:51:08 PM) (3 of 15) [CFA-357/2021] defendants' forefather Suwa Lal Ji died on 20.6.2002 and their grand mother Smt. Suwa Devi W/o Suwa Lal Ji died on 11.5.2002. Out of the wedlock of Smt. Suwa Devi and Suwa Lal Ji, three sons namely Mahadev, Shri Krishan and Shri Shyogi born. Defendants no. 5 & 6 are father and mother of the plaintiff and defendants no. 7 and 8 are his brothers. Defendant no. 2 Smt. Mooli Devi is the widow of late Krishan (one of the sons of Suwa Lal ji). She is Taiji of the plaintiff. Defendant no.3 Moolchand is the son of Krishan. He is cousin brother of the plaintiff and defendant no. 1 and 4 are the husband and wife and they are uncle and aunt of the plaintiff. The plaintiff and the defendants are having the ancestral properties and the properties acquired from joint family fund, as disclosed in the plaint. The property, as described in para 4 of the plaint, is the ancestral property from the time of forefathers of Suwa Lal ji. In the year 1997, Suwa Lal and Smt. Suwa Devi filed a suit no. 8/1997 for partition and declaration before ADJ, Sambhar Lake, Distt. Jaipur. It was also averred that on the date of filing of the suit the plaintiff had born and he was about 13 years of age, but at the time of partition of the aforesaid ancestral properties, neither the plaintiff was made a party nor his rights were protected, whereas as per Hindu Succession Act, the plaintiff had acquired the right in the aforesaid ancestral properties since his birth. In the said suit, a compromise judgment and decree dated 5.3.1998 came to be passed, which is liable to be declared as null and void qua the plaintiff's rights. It was also averred that in order to take undue advantage in favour of the defendant no. 5, 6, 7 and 8, the defendant no.5 illegally sold the property, which was received by him pursuant to the judgment and decree dated 5.3.1998 to defendant no. 9 by (Downloaded on 08/04/2022 at 08:51:08 PM) (4 of 15) [CFA-357/2021] registered sale deed dated 15.2.2019. It was also averred that on 11.2.2019 the plaintiff came to know about the judgment and decree dated 5.3.1998 and he came to know about the sale deed dated 15.2.2.2019 on 17.2.2019. In this way, the cause of action was stated to have arisen on 11.2.2019 for which the suit was filed on 27.3.2019.
The defendants no. 1 to 4 filed an application under Order 7 Rule 11 CPC, wherein it was averred that the properties, as described by the plaintiff in para no. 4 of the plaint, were joint self acquired properties and not the ancestral properties. It was also pleaded that after taking into consideration the fact that the aforesaid properties were joint self acquired properties Civil Suit No. 8/1997 was decreed by the Court vide judgment dated 5.3.1998, therefore, neither the plaintiff had any right to file the suit nor any cause of action was accrued to him. It was further pleaded that on 5.3.1998, when the civil suit no. 8/1997 was decreed, the plaintiff disclosed him to be 13 years of age. In this way, when the plaintiff himself was minor, he had no income and he was pursuing his studies too, the expenses of which were bore by his father. Therefore, at the time of purchasing the properties, no financial help was given by him. It was further averred that in the year 2003, the plaintiff attained the age of 18 years and became major. He could have filed the objection for three years from the date of attaining the age of majority in relation to the judgment and decree dated 5.3.1998, but he did not file the objections till January, 2019. In this way, the plaintiff filed the suit challenging the judgment and decree dated 5.3.1998 after about 16 years, which being barred by law, is liable to be rejected. (Downloaded on 08/04/2022 at 08:51:08 PM)
(5 of 15) [CFA-357/2021] The defendant no. 9 also filed an application under Order 7 Rule 11 CPC, wherein it was averred that the plaintiff neither filed the suit in accordance with the provisions of Rajasthan Court Fee and Suit valuation (Amendment) Act, 2009 nor in accordance with the provisions of Section 304 of the Municipality Act. It was further pleaded that since no cause of action had been accrued to the plaintiff, his suit was liable to be rejected.
After hearing the arguments, the trial court vide its order dated 14.9.2021 allowed the applications filed by the defendants no. 1 to 4 and 9 under Order 7 Rule 11 CPC and the suit filed by the plaintiff for declaring the judgment and decree dated 5.3.1998 as also the sale deed dated 15.2.2019 as null and void, partition declaration and permanent injunction has been dismissed. Hence, this Civil First Appeal has been filed.
Learned Sr. Counsel appearing for the plaintiff submits that the order dated 14.9.2021 passed by the trial court is not legally sustainable. He further submits that if the suit was undervalued, in view of the provisions of Order 7 Rule 11 (c) CPC, time ought to have been granted to the plaintiff to pay the deficit court fee, but in the instant case, that was not done by the trial court. He further submits that in the present matter, the question of limitation is a mixed question of law and fact, which can be decided only after taking evidence of both the parties. Even otherwise when the plaintiff specifically pleaded that he came to know about the judgment and decree dated 5.3.1998 on 11.2.2019, the suit was within limitation. He further submits that the plaintiff specifically pleaded in the plaint that the property in question was ancestral and joint property and the plaintiff is a (Downloaded on 08/04/2022 at 08:51:08 PM) (6 of 15) [CFA-357/2021] coparcener. In this way, cause of action was disclosed in the plaint. At the time of deciding the application under Order 7 Rule 11 CPC, only the averments made in the plaint are germane. However, the learned trial court has committed material illegality while passing the impugned order. He further submits that since this is a First Appeal, therefore, the same be admitted.
In support of his contentions, he has placed reliance on the following judgments:
i) Salim D. Agboatwala and others Versus Shamalji Oddhavji Thakkar and others (Civil Appeal No. 5641 of 2021)
ii) P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy & Anr. Versus P. Neeradha Reddy & Ors. Etc. reported in 2015 SAR (Civil) 385
iii) Popat and Kotecha Property Versus State Bank of India Staff Association reported in (2005) 7 Supreme Court Cases 510
iv) Srihari Hanumandas Totala Versus Hemant Vithal Kamat and others reported in (2021) 9 Supreme Court Cases 99
v) Saleem Bhai and others Versus State of Maharashtra and others reported in (2003) 1 Supreme Court Cases 557 On the other hand, learned Sr. counsel appearing for the defendants has supported the impugned order and stated the same to be just and proper. He further submits that although the plaintiff claimed the suit property as ancestral property, but material particulars to the effect that suit property is coparcenary and ancestral property have not been given by him. The plaintiff (Downloaded on 08/04/2022 at 08:51:08 PM) (7 of 15) [CFA-357/2021] has not pleaded in the suit as to whether the suit property came into existence prior to 1956 or after 1956. The plaintiff has also not specifically pleaded in the suit that the suit property had been devolved to his grand father or forefather prior to 1956. He further submits that if the suit property was devolved to the grand father of the plaintiff after the year 1956, then in view of Section 8 of the Hindu Succession Act, same shall be considered as self acquired and personal property. Learned Sr. Counsel further submits that the plaintiff has also not pleaded in the suit that the suit property belongs to forefathers of late Suwa Lal Ji and being the member of 4th generation, he is entitled to have share in the suit property as defendant. He has specifically not pleaded in the suit that the plaintiff is not residing with his father, therefore, he had no knowledge about the judgment and decree dated 5.3.1998. From the averments made in the plaint, more particularly paragraph no.
11 of the plaint, it is evident that the plaintiff was having knowledge about the judgment and decree dated 5.3.1998. He further submits that as per Articles 58 & 59 of the Limitation Act, suit ought to have been filed within three years from the date of knowledge. In this way, the suit could have been filed upto March, 2001, but the suit was filed on 27.3.2019 i.e. about about 18 years from the date of knowledge. it is submitted that fictitious dates have been given in the plaint in order to bring the suit within limitation. In the last, he has prayed to dismiss the appeal.
In support of his contentions, he has placed reliance on the following judgments:
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i) M/s. Sree Surya Developers and Promoters Versus N.
Sailesh Prasad and others (Civil Appeal Nos. 440-441 of 2022)
ii) Late Dhanpat Kanwar Versus Smt. Shanti reported in 2019 (4) WLC (Raj.) 495
iii) M/s. Key Pee Buildtech Pvt. Ltd. Versus Smt. Shahjahan Begum reported in 2015 (4) WLC (Raj.) 212
iv) Triloki Nath Singh Versus Anirudh Singh (D) thr. LRs & Ors. - Civil Appeal No(s) 3961 of 2010
v) Raghwendra Sharan Singh Versus Ram Prasanna Singh (Dead) by LRs. reported in 2019 AIR (SC) 1430
vi) Mrigendra Singh Versus Sohan Raj Surana & ors. - S.B. Civil First Appeal No. 425 of 2021 Heard. Considered.
In the case of Salim D. Agboatwala and others (supra) relied upon by counsel for the plaintiff, it has been observed by the Hon'ble Apex Court:
"11. The above averments may or may not be true. But if the plaintiffs succeed in establishing the above averments, the issue of limitation cannot be put against the plaintiffs. Generally, a party who never had any notice of a particular proceeding before a quasi-judicial authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party"
12. We are not dealing here with a case where notices were ordered to be issued, but were not or could not, be served on necessary and proper parties. We are dealing with a case where the plaintiffs assert in no uncertain terms (Downloaded on 08/04/2022 at 08:51:08 PM) (9 of 15) [CFA-357/2021] that notices were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case.
In the aforesaid facts and circumstances of the case where a party had never any notice of a particular proceeding before a quasi judicial authority, it was held by the Hon'ble Apex Court that the limitation is a mixed question of fact and law, whereas the facts of the instant case are quite distinct than the facts of the aforesaid case. Thus, the judgment passed by the Hon'ble Apex Court in the case of Salim D. Agboatwala and others (supra) does not apply to the facts of the instant case.
In the case of P.V. Guru Raj Reddy Rep. by GPA Laxmi Narayan Reddy & Anr. (supra) relied upon by counsel for the plaintiff, it has been held by the Hon'ble Apex Court:
"5. Rejection of the plaint under Order VII Rule 11 of the CPC is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11, the stand of the defendants (Downloaded on 08/04/2022 at 08:51:08 PM) (10 of 15) [CFA-357/2021] in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments made in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law, the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial."
(emphasis supplied by me) In this judgment also, it has been held by the Hon'ble Apex Court that at the time of deciding the application under Order VII Rule 11 CPC, only the averments made in the plaint are required to be looked into, but if the averments made in the plaint do not disclose a cause of action or the suit appears to be barred by law, the plaint can be rejected.
So far as the cause of action is concerned, the trial court while allowing the applications under Order 7 Rule 11 CPC and rejecting the plaint observed that the plaintiff claimed his share in the ancestral property on the basis of coparcenary rights, but he did not mention the material particulars to the effect that the suit property was ancestral coparcenery property. He did not plead that the suit property came into existence before 1956 or after 1956. He has also not specifically pleaded that the suit property was devolved to the plaintiff's grand father or any forefather prior to 1956. If the suit property had been devolved to the plaintiff's grand father after the year 1956, such property could not be considered as ancestral property and in view of Section 8 of the Hindu Succession Act, 1956, such property shall be considered as self acquired and personal property. The plaintiff (Downloaded on 08/04/2022 at 08:51:08 PM) (11 of 15) [CFA-357/2021] has not pleaded that the suit property belongs to forefathers of the Suwa Lal and being the member of 4th generation, he is entitled to get share therein as per the provisions of Hindu Succession Act.
So far as the limitation is concerned, the trial court while allowing the applications under Order 7 Rule 11 CPC and rejecting the plaint observed that in the year 1998, the plaintiff disclosed himself to be 13 years of age. In this way in the year 2003, he attained the age of majority, whereas the suit was filed on 27.3.2019. Taking into consideration the provisions of Article 60 of the Limitation Act, the suit was found to be not within Limitation and the trial court rejected the plaint qua limitation.
However, the observations made by the trial court are not correct as Articles 58 & 59 of the Limitation Act would apply in the instant case.
In the present matter, it has also not been pleaded in the plaint that the suit property belongs to forefathers of late Suwa Lal Ji and being the member of 4th generation, he is entitled to have share in the suit property as co-parcener. it has also not been pleaded that the plaintiff does not reside with his father. Taking into consideration the facts and circumstances of the case, more particularly taking into consideration the averments made in paragraph 11 of the plaint, it cannot be said that the plaintiff was not having knowledge about the judgment and decree dated 5.3.1998. Thus, in view of the provisions of Articles 58 & 59 of the Limitation Act, 1963, the suit ought to have been filed within three years from the date of knowledge, whereas the suit was filed on 27.3.2019 and the dates of knowledge given by the plaintiff in the plaint appear to be fictitious and the suit has (Downloaded on 08/04/2022 at 08:51:08 PM) (12 of 15) [CFA-357/2021] been cleverly drafted in order to bring the suit within limitation and for disclosure of cause of action.
Hon'ble Apex Court in the case of Raghwendra Sharan Singh Versus Ram Prasanna Singh (Dead) by Lrs reported in 2019 AIR (SC) 1430, referred its own judgment passed in the case of T. Arivandandam v. T.V. Satyapal and Another reported in (1977) 4 SCC 467, where it was held by the Hon'ble Apex Court:
"5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. 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 Order 7, Rule 11 CPC 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 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, (Cr.XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi:
"It is dangerous to be too good."
(Emphasis supplied by me) It will also be apposite to refer to the following observations of the Hon'ble Apex Court in the case of Pearlite (Downloaded on 08/04/2022 at 08:51:08 PM) (13 of 15) [CFA-357/2021] Liners (P) Ltd. Versus Manorama Sirsi reported in (2004) 3 SCC 172 as under:
"10. The question arises as to whether in the background of the facts already stated, such reliefs can be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further, it is to be considered that if the plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief, if granted, would indirectly mean that the court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment (Downloaded on 08/04/2022 at 08:51:08 PM) (14 of 15) [CFA-357/2021] of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected."
(Emphasis supplied by me) In view of the above discussion, learned trial court was right in rejecting the plaint on the ground of limitation as well as on account of non disclosure of cause of action in the plaint.
Since in the present suit, plaintiff's claim for partition has been found to be without cause of action and beyond limitation, as such the same has been rejected under Order 7 Rule 11 CPC. However rejection of this plaint would not affect the right of plaintiff to claim his right of partition afresh in the properties received by his mother and father and if plaintiff claims partition in the share of properties received by his mother and father, in that case, his right would be considered on merits, without being prejudiced by the rejection of present plaint.
So far as valuation of the suit is concerned, main relief prayed by the plaintiff is that the judgment and decree dated 5.3.1998 be declared as null and void. In the suit itself, the plaintiff mentioned the valuation at Rs. 1,00,00,000/-. In this view of the matter, if the plaintiff was required to pay the court fee as per market value of the suit property, time ought to have been given to him to pay the requisite court fee in view of the provisions of Order 7 Rule 11 (c) CPC. However, the learned trial court has committed an error while not proceeded in accordance with the provisions of Order 7 Rule 11 (c) CPC. (Downloaded on 08/04/2022 at 08:51:08 PM)
(15 of 15) [CFA-357/2021] For the aforesaid reasons, I find no force in this appeal and the same being bereft of any merit is liable to be dismissed, which stands dismissed accordingly.
Consequent upon the disposal of the appeal, interim order, if any, is vacated and the stay application as also the pending application, if any, also stand disposed of accordingly.
(PRAKASH GUPTA),J DK/57 (Downloaded on 08/04/2022 at 08:51:08 PM) Powered by TCPDF (www.tcpdf.org)