Uttarakhand High Court
Unknown vs State Bank on 9 November, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 9TH DAY OF NOVEMBER, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (M/S) No. 2520 of 2022
BETWEEN:
Charan Singh & others. .......Petitioners
(By Mr. T.A. Khan, Senior Advocate, assisted by
Ms. Sadaf, Advocate, holding brief of Mr. Vinay Bhatt,
Advocate for the petitioners)
AND:
Smt. Vimla Devi & others. .....Respondents
(By Mr. Shobhit Sahari, Advocate for respondent no. 1, 2
& 3 and Mr. Yogesh C. Tiwari, Standing Counsel for the
State of Uttarakhand/respondent no. 7)
JUDGMENT
In this writ petition filed under Article 227 of the Constitution, petitioners have challenged the order dated 30.11.2021 passed by Assistant Collector, First Class, Bazpur, Udham Singh Nagar, whereby, their application under Order 7 Rule 11 C.P.C. was rejected. Revision filed by them against the said order was also dismissed, which is also under challenge in this writ petition.
2. Petitioners are defendants in Revenue Suit No. 22/15 of 2015-16 filed by respondent nos. 1 to 3 in the year 2016. As per the plaint averment, late Paramdev Singh, father-in-law of plaintiff no. 1 and 2 father of plaintiff nos. 2 & 3, was Bhumidhar with transferable rights in respect of agricultural land, admeasuring 0.924 hectare comprised in Khasra No. 29-Kha and 30 Cha, situate in Village Jhagarpuri, Tehsil Gadarpur, District Udham Singh Nagar; after death of Paramdev Singh, name of plaintiffs was mutated in revenue records.
3. It was further pleaded in the plaint that one Bechan Singh, nephew of late Paramdev Singh, was looking after the land in question as agent of late Paramdev Singh, as Paramdev Singh was residing at District Mau (Uttar Pradesh); after death of Bechan Singh, when plaintiff nos. 2 & 3 came to Village Nandpur, District Udham Singh Nagar in February, 2008, then it was revealed to them that late Bechan Singh had fraudulently got his name recorded in respect of the land in question during settlement proceedings, and thereafter he illegally sold the same in favour of defendant nos. 1, 2 & 3 (petitioners herein). Plaintiffs moved an application seeking recall of the order dated 10.12.1996, whereby name of Bechan Singh was recorded in revenue records, and the application filed by plaintiffs was allowed by Assistant Record Officer vide order dated 07.11.2008, and name of plaintiffs was re-entered in revenue records as Bhumidhar. It was further pleaded that late Bechan Singh had fabricated a family settlement with forged signature of husband of plaintiff no. 1-late Ramjanam Singh, although he was missing for last more than 31 years and his civil death was declared by Competent Court in District Mau in Civil Suit No. 1483 of 2003. In the suit, plaintiffs sought a declaration that sale deeds executed by late Bechan 3 Singh in favour of defendant nos. 1, 2 & 3 on 26.04.1999 and 04.01.2000 are null and void. They also prayed that possession of the suit property be handed over to them.
4. Petitioners, who are defendant nos. 1, 2 & 3 in the suit, had earlier filed an application under Order 7 Rule 11 C.P.C. with the contention that Court Fee paid for reliefs 'A' & 'B' is insufficient and no Court Fee has been paid for relief 'C', and further that the plaint does not disclose a cause of action. Application filed by petitioners was disposed of by learned trial Court vide order dated 06.08.2019 only with a direction to plaintiffs to pay the requisite Court Fee for reliefs 'A' & 'C'.
5. Petitioners thereafter filed another application under Order 7 Rule 11 C.P.C. with the contention that the vendor (Bechan Singh) became owner of the land in question through a family settlement dated 14.01.1996, and at the time when petitioners purchased the land, late Bechan Singh had become absolute owner of the said land. It was further contended that against the order dated 07.11.2008 passed by Assistant Record Officer on plaintiffs' restoration application, petitioners filed a revision and learned Additional Commissioner, Kumaon vide order dated 10.03.2011, remanded the matter to the Assistant Record Officer, and against the remand order, petitioners filed a writ petition, which is pending before High Court, and operation of the judgment dated 10.03.2011 passed by Additional Commissioner has been stayed, therefore, till decision on merit in the restoration application filed by 4 plaintiffs before the Assistant Record Officer, the suit for declaration filed by plaintiffs is not maintainable, consequently, there is no cause of action available to petitioners. It was further contended that the suit is time barred.
6. The said application was rejected by Assistant Collector, First Class, Bazpur vide order dated 30.11.2021. Petitioners filed revision challenging trial Court's order dated 30.11.2021, which was dismissed by learned Commissioner, Kumaon Division. Thus feeling aggrieved, petitioners have approached this Court challenging the order passed by Assistant Collector and also the judgment rendered by Commissioner.
7. Heard learned counsel for the parties and perused the record.
8. Learned Assistant Collector has considered the matter in great detail, and has given valid reason for rejecting petitioners' application filed under Order 7 Rule 11 C.P.C. It has been held that application filed by plaintiffs for restoration of the order passed in summary proceedings under Section 54 of Land Revenue Act cannot bar a regular suit seeking declaration that the sale deeds are null & void. Section 40-A of U.P. Land Revenue Act has also been referred, which provides that order passed in summary proceedings, will have no effect in a regular suit for declaration of title. Learned trial Court has also referred to the earlier order dated 06.08.2019 passed on petitioners' application under Order 7 Rule 5 11 C.P.C., whereby petitioners' objection that plaint does not disclose any cause of action, was rejected.
9. Learned Revisional Court has also considered the matter in great detail and has also reproduced the final order dated 28.10.2021 passed by Co-ordinate Bench of this Court in Writ Petition (M/S) No. 668 of 2011. Perusal of the order of Co- ordinate Bench reveals that challenge thrown by petitioners to the remand order passed by Additional Commissioner, was unsuccessful.
10. This Court concurs with the reasoning given by the Revisional Court.
11. Learned Senior Advocate for the petitioners contends that learned Courts below erred in not considering that the suit was filed after expiry of limitation period prescribed by law, therefore, the judgment and order passed by learned Courts below are liable to be set aside.
12. Learned counsel for respondent nos. 1, 2 & 3 points out that his clients had earlier filed a declaratory suit before a Civil Court, however, petitioners questioned maintainability of the suit before a Civil Court by filing a writ petition, and a Co- ordinate Bench of this Court vide judgment dated 02.09.2015 held that civil suit is not maintainable in respect of agricultural land and the said judgment was upheld by Hon'ble Supreme Court, consequently, petitioners had to file suit before revenue Court. He further submits that his clients are resident of District Mau in State of Uttar Pradesh, and they had no idea that their land was surreptitiously sold by late Bechan 6 Singh, and when they acquired knowledge about the sale deeds, they immediately filed the suit thus there is no delay on their part in filing the suit, and the period of limitation has to be reckoned from the date of acquiring knowledge about the sale deeds.
13. Rejection of the plaint under Order 7 Rule 11 of C.P.C. is a drastic power conferred upon the court to terminate a civil action at the threshold. Hon'ble Supreme Court has time and again reiterated that disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 C.P.C. Law laid down by Hon'ble Supreme Court in the case of Popat & Kotecha Property Vs. State Bank of India Staff Association, reported in (2005) 7 SCC 510, is reproduced below:-
" Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
14. There is no dispute that plaint of a suit can be rejected, if upon reading the plaint as a whole, it is found that the suit is barred by law of limitation. However, at times, plea of limitation becomes a mixed question of law and fact, which can be decided only after framing of issues and taking of evidences, as held by Hon'ble Supreme Court in the case of Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, reported in (2006) 5 SCC 658. Relevant extract of the said judgment is reproduced below:-
"After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 7 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."
15. The scope of power available to a Court under Order 7 Rule 11 C.P.C. was considered and discussed in the case of P.V. Guru Raj Reddy v. P. Neeradha Reddy, reported in (2015) 8 SCC 331, where their Lordships of Hon'ble Supreme Court have held that "rejection of the plaint under Order 7 Rule 11 of 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 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have 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 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments 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."
16. Learned counsel for the respondents has relied upon judgment of Hon'ble Supreme Court in the 8 case of Ram Prakash Gupta v. Rajiv Kumar Gupta, reported in (2007) 10 SCC 59. In the said case, learned trial Court rejected the plaint on the ground that the suit is barred by limitation. High Court upheld the order passed by learned trial Court. Hon'ble Supreme Court set aside the order passed by trial Court, as affirmed by the High Court. Relevant extract of the said judgment is reproduced below:
"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.
22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation.
23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial court.9
24. In the light of our above discussion, we set aside the order of the trial court dated 20-2- 2006 passed by the Civil Judge, Delhi in Suit No. 318 of 2003 and the judgment dated 27-4-2006 passed by the High Court of Delhi in RFA No. 188 of 2006. In the result, the civil appeal is allowed and the Civil Judge is directed to restore the suit to its original file and dispose of the same on merits preferably within a period of six months from the date of receipt of the copy of this judgment. It is made clear that except on the question of limitation, we have not gone into the merits of the claim made by both parties. No costs.
17. In a recent judgment in the case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & others, reported in (2021) 9 SCC 99 Hon'ble Supreme Court was considering the question whether res judicata can be the basis for rejection of plaint. In the said judgment, Hon'ble Supreme Court has analysed the scope of power under Order 7 Rule 11 C.P.C. in great detail. Paragraph nos. 18 to 22 of the said judgment are reproduced below:
"18. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection of the plaint. In Kamala v. K.T. Eshwara Sa [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , the trial Judge had allowed an application for rejection of the plaint in a suit for partition and this was affirmed by the High Court. S.B. Sinha, J. speaking for the two-Judge Bench examined the ambit of Order 7 Rule 11(d) CPC and observed : (SCC 668-69, paras 21-22) "21. Order 7 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 the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on 10 the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 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 would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision."
(emphasis supplied)
The Court further held : (Kamala
case [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , SCC p. 669, paras 23-25) "23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained."
The above view has been consistently followed in a line of decisions of this Court. In Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , P. Sathasivam, J. (as the learned Chief Justice then was), speaking for a two-Judge Bench, observed that : (SCC pp. 713-14, paras 10-11) "10. ... It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued 11 and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , in which, while considering Order 7 Rule 11 of the Code, it was held as under : (SCC p. 560, para 9) '9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit
-- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.' It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint 12 averments. These principles have been reiterated in Raptakos Brett & Co.
Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] ."
Similarly, in Soumitra Kumar Sen [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , an application was moved under Order 7 Rule 11 CPC claiming rejection of the plaint on the ground that the suit was barred by res judicata. The trial Judge dismissed the application and the judgment of the trial court was affirmed in revision by the High Court. A.K. Sikri, J., while affirming the judgment of the High Court held : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 649, para 9) "9. In the first instance, it can be seen that insofar as relief of permanent and mandatory injunction is concerned that is based on a different cause of action. At the same time that kind of relief can be considered by the trial court only if the plaintiff is able to establish his locus standi to bring such a suit. If the averments made by the appellant in their written statement are correct, such a suit may not be maintainable inasmuch as, as per the appellant it has already been decided in the previous two suits that Respondent 1- plaintiff retired from the partnership firm much earlier, after taking his share and it is the appellant (or appellant and Respondent
2) who are entitled to manage the affairs of M/s Sen Industries. However, at this stage, as rightly pointed out by the High Court, the defence in the written statement cannot be gone into. One has to only look into the plaint for the purpose of deciding application under Order 7 Rule 11 CPC. It is possible that in a cleverly drafted plaint, the plaintiff has not given the details about Suit No. 268 of 2008 which has been decided against him. He has totally omitted to mention about Suit No. 103 of 1995, the judgment wherein has attained finality. In that sense, the plaintiff-Respondent 1 may be guilty of suppression and concealment, if the averments made by the appellant are ultimately found to be correct. However, as per the established principles of law, such a 13 defence projected in the written statement cannot be looked into while deciding application under Order 7 Rule 11 CPC."
Referring to Kamala [Kamala v. K.T. Eshwara Sa, (2008) 12 SCC 661] , the Court further observed that : (Soumitra Kumar Sen case [Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644 : (2018) 3 SCC (Civ) 329] , SCC p. 650, para 12) "12. ... The appellant has mentioned about the earlier two cases which were filed by Respondent 1 and wherein he failed. These are judicial records. The appellant can easily demonstrate the correctness of his averments by filing certified copies of the pleadings in the earlier two suits as well as copies of the judgments passed by the courts in those proceedings. In fact, copies of the orders passed in judgment and decree dated 31-3-1997 passed by the Civil Judge (Junior Division), copy of the judgment dated 31-3-1998 passed by the Civil Judge (Senior Division) upholding the decree passed by the Civil Judge (Junior Division) as well as copy of the judgment and decree dated 31-7-2014 passed by the Civil Judge, Junior Division in Suit No. 268 of 2008 are placed on record by the appellant. While deciding the first suit, the trial court gave a categorical finding that as per MoU signed between the parties, Respondent 1 had accepted a sum of Rs 2,00,000 and, therefore, the said suit was barred by principles of estoppel, waiver and acquiescence. In a case like this, though recourse to Order 7 Rule 11 CPC by the appellant was not appropriate, at the same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions."
(emphasis supplied) While holding that "recourse to Order 7 Rule 11" by the appellant was not appropriate, this Court observed that the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide them in the first instance. The Court held that this course of action 14 would help the appellant avoid lengthy proceedings.
19. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India [Shakti Bhog Food Industries Ltd. v. Central Bank of India, (2020) 17 SCC 260] , a three-Judge Bench of this Court, speaking though A.M. Khanwilkar, J., was dealing with the rejection of a plaint under Order 7 Rule 11 by the trial court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. Stateof Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] , Church of Christ Charitable Trust [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , and observed that : (Church of Christ Charitable Trust case [Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612] , SCC p. 714, para 11) "11. ... It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100] ."
20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarised as follows:
(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;
(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;
(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the 'previous suit' is 15 decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit;
(iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and
(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.
21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which "has forced" the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007. Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided 16 within the four corners of the plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d)
22. For the above reasons, we hold that the plaint was not liable to be rejected under Order 7 Rule 11(d) and affirm the findings of the Trial Court and the High Court. We clarify however, that we have expressed no opinion on whether the subsequent suit is barred by the principles of res judicata. We grant liberty to the appellant, who claims as an assignee of the bona fide purchaser of the suit property in an auction conducted by KSFC, to raise an issue of the maintainability of the suit before the Additional Civil Judge, Belgaum in OS No. 138/2008. The Additional Civil Judge, Belgaum shall consider whether a preliminary issue should be framed under Order XIV, and if so, decide it within a period of 3 months of raising the preliminary issue. In any event, the suit shall be finally adjudicated upon within the outer limit of 31 March 2022."
18. Learned Senior Advocate for the petitioners relied upon a judgment rendered by Hon'ble Supreme Court in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by LRs, reported in (2020) 16 SCC 601. However, the said judgment is distinguishable on facts, as in that case plaintiff himself had executed a registered gift deed on 06.03.1981 and in the year 2002, after about 22 years, a suit for declaration was filed by him that the gift deed executed in 1981 is a showy and sham transaction and no title passed to the defendants on the strength of the gift deed. Thus from the plaint averments, it was apparent that suit is barred by limitation.
19. In the present case, plaintiffs have pleaded that the sale deed was fraudulently executed by late Bechan Singh in favour of petitioners by claiming to be owner thereof and they acquired knowledge about the fraudulent sale deed only in February, 2008, when 17 they visited the village for attending the last rites of Bechan Singh.
20. Thus, whether plaintiffs acquired knowledge about the sale deed in February, 2008, as alleged or not, is a question, which cannot be decided while considering application under Order 7 Rule 11 C.P.C. Thus, in the present case, the question with respect to limitation becomes a mixed question of fact and law, which can be decided only after the parties lead evidence.
21. Thus, there is no scope for interference with the order passed by learned trial Court as affirmed by the Revisional Court.
22. Accordingly, writ petition fails and is dismissed.
(MANOJ KUMAR TIWARI, J.) Arpan