Madhya Pradesh High Court
Smt. Rashmi Pathak vs Shaskiya Karmachari Grih Nirman ... on 16 August, 2017
1 Civil Revision No.172/2016
HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Single Bench: Hon'ble Shri Justice Virender Singh
Civil Revision No.172/2016
Smt. Rashmi Pathak W/o Anirudh Pathak
Vs.
Shaskiya Karmachari Grih Nirman Sehkari Sanstha Maryadit,
Bicholi Hapsi Road, Indore and another
Shri Prateek Maheshwari, learned counsel for the
petitioner.
Shri Javed Khan, learned counsel for the respondent
No.1.
Shri Mukesh Kumawat, learned Panel Lawyer for the
respondent No.2/State.
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ORDER
(Passed on 16/08/2017) Being aggrieved by order dated 3-8-2016 passed by Civil Judge Class-II, Indore in Civil Original Suit number 37-A/2015, whereby the application under Order VII Rule 11 of the Code of Civil Procedure, 1908 filed by the petitioner/defendant No.1 challenging the maintainability of the suit has been dismissed; the petitioner has preferred the present petition.
2. Facts in brief are that the respondent No.1/plaintiff is a housing cooperative society. Petitioner claims to be a member of the society. The society sold a plot number 301, situated at 2 Civil Revision No.172/2016 Mangal Nagar, Gram Bicholi Hapsi Road, Indore vide registered sale deed dated 22/7/2014. The plot was mutated in the name of petitioner. Alleging that the sale was made by erstwhile office bearer of the society against the bye-laws of the society, concerned department directed the society to take steps to get the sale deed cancelled. The society then filed a civil suit for declaring the sale deed and mutation entries made pursuant thereto null and void and also for injunction.
3. Contesting the suit, the petitioner filed an application under Order VII Rule 11 CPC stating that (i) the suit is barred by law, as it has been filed after 12 years of execution of the sale deed, (ii) possession of the suit plot is with him and the plaintiff has not sought relief for possession of the suit land; therefore suit is not maintainable in view of Section 34 of the Specific Relief Act and (iii) the suit was not properly valued as according to the petitioner, it should have been valued as per the Provisions of Art. 17 III of the Schedule II.
4. The application was dismissed by the learned trial Court holding that (i) the suit has been filed in compliance of the direction of the Collector dated 27/05/2015 pursuant to the inquiry report dated 21/05/2014 of the Deputy Commissioner, Co-operative Societies, therefore prima facie it does not appear to be barred by limitation, (ii) the plaintiff has claimed that the possession of the suit property was with him therefore, it was not necessary for him to ask relief for recovery of possession. Whether possession was with him or not, this is a matter of fact which can be determined after taking evidence on merits and (iii) the plaintiff has sought relief of declaration of sale 3 Civil Revision No.172/2016 deed null and void without any consequential relief and has valued the suit on the sale price of the plot and has paid the fix court fees under article 17 (iii) of scheduled II and in view of the provisions of Section 7 (iv) (c) of the Court Fees Act, 1870 which is proper.
5. Learned counsel for the petitioner submits that the said order is contrary to settled principles of law and has been passed without considering the facts and circumstances of the case. Learned Trial Court has failed to consider the provisions contained under Order VII Rule 11 and other provisions of the Code of Civil Procedure, 1908 along with provisions contained under the Limitation Act, 1963 as well as Specific Relief Act, Court Fees Act in its real object and spirit which prescribes that where the Suit appears to be barred by any law especially by law of limitation, then the same is liable to be dismissed and cannot be allowed to continue. Learned Trial Court failed to consider the said aspect of the matter in correct perspective. This is an admitted fact that sale deed was in the knowledge of the respondent No.1/plaintiff since its execution, therefore, the limitation for filing the suit for cancellation of the same starts from the date of execution of the sale deed and from that the suit which is filed after 12 year of execution of the sale deed is clearly barred by limitation under article 56 of the Limitation Act, 1963. Mere an order of authority cannot extend limitation.
6. According to the petitioner there is no mention in the suit that the possession of the disputed property was with the plaintiff; therefore, suit for declaration simpliciter is not maintainable, unless the relief of possession is not claimed.
4 Civil Revision No.172/2016Further, in a suit for cancellation of any registered document particularly sale deed ad valorem Court fees is required to be paid.
7. Learned Counsel for the respondents have supported the order.
8. It is settled principle of law that while deciding the application under Order VII Rule 11 CPC, the Court has only to consider averments made in the plaint. Nothing is there on record to show that it was in the knowledge of the plaintiff since execution of the sale deed that the same is invalid or illegal; therefore the contention of the petitioner is not tenable. The plaintiff has claimed that the possession of the suit property was with him. His claim cannot be examined on merits while deciding the application under Order VII Rule 11 CPC. The plaintiff has valued its suit as per the sale consideration of the sale deed and paid the fixed Court fees as required by the law as he has not claimed any consequential relief with the relief of declaration. Prima facie it appears that the valuation and the Court fees paid is proper; therefore the learned trial Court did not commit any error while rejecting the application of the petitioner. I do not find any incorrectness, illegality or impropriety in the impugned order. In view of the aforesaid, I do not find any merits in the present petition. It deserves to be and is dismissed hereby; however without any order as to the cost.
(Virender Singh) Judge Aiyer*