Himachal Pradesh High Court
Ashirwad Developers And Promoters vs Ram Lok And Another on 6 August, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:6556 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.198 of 2023 alongwith connected matters Decided on: 6th August, 2024
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1. CMPMO No.198 of 2023 .
Ashirwad Developers and Promoters .....Petitioner Versus Ram Lok and another .....Respondents
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2. CMPMO No.184 of 2023 Ashirwad Developers and Promoters .....Petitioner Karnailo Devi and others r to Versus .....Respondents
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3. CMPMO No.202 of 2023Ashirwad Developers and Promoters .....Petitioner Versus Charno Devi and others .....Respondents
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4. CMPMO No.232 of 2023
Ashirwad Developers and Promoters .....Petitioner
Versus
Inder and others .....Respondents
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5. CMPMO No.234 of 2023Ashirwad Developers and Promoters .....Petitioner Versus Karam Chand and others .....Respondents
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::: Downloaded on - 08/08/2024 20:30:04 :::CIS2 2024:HHC:6556 6. CMPMO No.236 of 2023 Ashirwad Developers and Promoters .....Petitioner Versus Dharam Pal and others .....Respondents .
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7. CMPMO No.310 of 2023Ashirwad Developers and Promoters .....Petitioner Versus Hari Chand and others .....Respondents
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8. CMPMO No.362 of 2023
Ashirwad Developers and Promoters .....Petitioner
Versus
Charno Devi and others
r .....Respondents
------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? i Yes.
Mr. Sudhir Thakur, Senior Advocate with Mr. Somesh Sharma, Advocate, for the petitioner(s) in all the matters.
Mr. Ishan Sharma, Advocate, for respondent No.1 in CMPMO No.198 of 2023, respondents No.1 to 10 in CMPMO No.184 of 2023, respondents No.1 to 19 in CMPMO No.202 of 2023, respondents No.1 and 3 to 6 in CMPMO No.232 of 2023, respondents No.1 to 4 and 6 to 38 in CMPMO No.234 of 2023, respondents No.1 and 3 to 11 in CMPMO No.236 of 2023, respondents No.1 to 24 in CMPMO No.310 of 2023 and respondents No.1 to 19 in CMPMO No.362 of 2023.
Respondents No.20(i) to 20(iii) in CMPMO No.202 of 2023 ex-parte.
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i Whether reporters of print and electronic media may be allowed to see the order? Yes ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 3 2024:HHC:6556 Jyotsna Rewal Dua, Judge In CMPMO No.232 of 2023, despite notices having been served upon the legal representatives of deceased respondent No.2 (original plaintiff No.2), none has .
put in any appearance on their behalf. Hence, they are proceeded against ex-parte.
Involving overlapping questions of facts & law and arising out of similar, but separate orders passed by the learned Trial Court on 21.01.2023, these petitions are taken up together for disposal. However, for the sake of convenience, facts/documents from CMPMO No.198 of 2023 shall be referred to.
Learned Trial Court vide impugned order has rejected an application under Order 7 Rule 11 of the Code of Civil Procedure (CPC) moved by defendant No.1 for rejection of the plaint.
2. Facts:-
2(i). An application under Order 7 Rule 11 CPC was moved by defendant No.1 on the grounds that:- (a) Plaint did not disclose any cause of action; (b) Relief prayed for in the plaint was barred by law of limitation; and (c) Plaint was insufficiently stamped.::: Downloaded on - 08/08/2024 20:30:04 :::CIS
4 2024:HHC:6556 2(ii). The plaintiffs opposed the application. Their stand was that the plaint disclosed ample cause of action.
The relief was not barred by law of limitation. The allegation of plaint having been insufficiently stamped was also .
denied.
2(iii). Learned Trial Court rejected the application on 21.01.2023 holding that for deciding the application under Order 7 Rule 11 CPC, only the contents of the plaint were required to be examined. The plaintiffs had laid challenge to the sale deed and according to their stand:- Consideration amount was not paid to them; They continued to be in possession of the suit land; Contentions of the plaintiffs were required to be analyzed, which would involve leading of evidence and it is only at that stage the allegations & counter-allegations can be decided. Learned Trial Court held that at the preliminary stage of the suit, in view of the rival contentions of the parties, it cannot be said that the plaintiffs had no cause of action or that adequate court fees had not been affixed.
Feeling aggrieved, defendant No.1 has come up in these petitions invoking the jurisdiction of this Court under Article 227 of the Constitution of India.
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3. Submissions:-
3(i). The contention of learned Senior Counsel for the petitioner/defendant No.1 is that the plaintiffs had instituted the civil suit on 15.11.2022 questioning the sale .
deed dated 25.04.2007/26.04.2008. In the body of the plaint, nothing was mentioned as to from which date, the cause of action had accrued to them. The sale deed questioned by the plaintiffs was a duly registered document. Articles 58 and 59 of the Limitation Act prescribe period of three years for challenging the sale deed.
Hence, neither the plaint disclosed cause of action nor the plaint was filed within the prescribed period of limitation.
In support of the submissions for rejecting the plaint and for assailing the impugned order, reliance was placed upon following paragraphs of the judgment rendered by the Hon'ble Supreme Court in Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives and others1:-
"29.18. The delay of over 5 and ½ years after the alleged cause of action arose in 2009, shows that the suit was clearly barred by limitation as per Article 59 of the Limitation Act, 1963. The suit was instituted on 15-12-2014, even though the alleged cause of action arose in 2009, when the last cheque was delivered to the plaintiffs. The Plaintiffs have failed to discharge the onus of proof that the suit was filed within the period of limitation. The 1 (2020) 7 SCC 366 ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 6 2024:HHC:6556 plaint is therefore, liable to be rejected under Order 7 Rule 11 (d) CPC.
29.19. Reliance is placed on the recent judgment of this Court rendered in Raghwendra Sharan Singh v. Ram Prasanna Singh wherein this Court held that the suit would be barred by limitation under Article 59 of the Limitation Act, if it was filed beyond three years of .
the execution of the registered deed.
29.20. The Plaintiffs have also prayed for cancellation of the subsequent sale deed dated 1-4-2013 executed by Respondent 1 in favour of Respondents 2 and 3; since the suit in respect of the first sale deed dated 2-7-2009 is rejected both under clauses (a) and (d) of Order 7 Rule 11, the prayer with respect to the second sale deed dated 1-4-2003 cannot be entertained.
30. The present suit filed by the plaintiffs is clearly an abuse of the process of the court, and bereft of any merit. The Trial Court has rightly exercised the power under Order 7 Rule 11 CPC, by allowing the application filed by Respondents 2 and 3, which was affirmed by the High Court."
Reliance was also placed upon Ramisetty Venkatanna and Ors. Vs. Nasyam Jamal Saheb and Ors.2. The facts in that case were inter alia noticed as under:-
"3.1. It is submitted that as such the suit was clearly barred by limitation and therefore, the plaint ought to have been rejected Under Order VII Rule XI(d) of the Code of Civil Procedure.
3.2. It is further submitted that the High Court has not properly appreciated the fact that in fact, the suit was barred by limitation as the same was instituted 61 years after the execution of partition deed dated 11.03.1953."
After considering the rival submissions, Hon'ble Apex Court held as under:-
2Civil Appeal No.2717 of 2023, decided on 28.04.2023 ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 7 2024:HHC:6556 "7. Now, so far as the reliance placed on the decision of the Privy Council referred to hereinabove and on the decision of this Court in the case of Subhaga (supra) are concerned, there cannot be any dispute with respect to the proposition of law laid down in the aforesaid two decisions. However, the question is the suit being barred by limitation and the illusory cause of action.
.
7.1. Now so far as the reliance placed upon the decision of this Court in the case of Nusli Neville Wadia (supra) is concerned, again there cannot be any dispute with respect to the proposition of law laid down by this Court that while deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement. However, on considering the averments in the plaint as they are, we are of the opinion that the plaint is ought to have been rejected being vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting.
8. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court and that of the learned Trial Court rejecting the application under Order VII Rule XI are unsustainable and the same deserve to be quashed and set aside and are accordingly, quashed and set aside. Consequently, the application submitted by the appellants-original defendant Nos. 9 and 10 to reject the plaint in exercise of powers under Order VII Rule XI(a) and (d) of the CPC is hereby allowed and consequently, the plaint of Civil Suit (O.S.) No. 35/2014 is ordered to be rejected.
Present appeal is accordingly allowed. No costs."
3(ii). Learned counsel for the plaintiffs/respondents defended the impugned orders and submitted that the plaintiffs had clearly spelt out the cause of action and the date from which it accrued to them. The civil suit instituted by the plaintiffs was within the prescribed limitation. There was no occasion for rejecting the plaint at the threshold.
The plaintiffs had every right to prove their assertions by ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 8 2024:HHC:6556 leading evidence. No case was made for allowing the application under Order 7 Rule 11 CPC on the grounds set forth by defendant No.1.
Reliance was placed upon M/s Ultimate Resorts .
Private Limited Versus Shri Uttam Chand (deceased) through LRs. Smt. Bhiki Devi & others3. In the said case, the allegation made in the plaint was that the sale deed was got executed by defendant No.1 (therein) through General Power of Attorney of the plaintiff by misrepresentation. Sale deed was sought to be declared as sham, illegal, null and void document. Application was moved under Order 7 Rule 11 CPC for rejecting the plaint on the ground that it did not disclose any cause of action and also that the suit was barred by limitation. The plea of the defendant for rejecting the plaint under Order 7 Rule 11 CPC was turned down with following observations:-
"12. As can be culled from the law laid down by Hon'ble Supreme Court, the underlying object of Order 7, Rule 11 of the Code of Civil Procedure inter alia is that if in a suit no cause of action is disclosed or the suit is barred by limitation, the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. However, the caution put by Hon'ble Supreme Court that the power conferred on a Court to terminate the civil action is a drastic one and the condition enumerated in Order 7, Rule 11 of the Code of Civil Procedure is required to be strictly adhered to. Hon'ble High Court has held that under Order 3 2024 (1) Him L.R. (HC) 416 ::: Downloaded on - 08/08/2024 20:30:04 :::CIS
9 2024:HHC:6556 7, Rule 11 of the Code of Civil Procedure, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint read in conjunction with the documents relied upon or whether the suit is barred by any law. The Court would determine if the assertions made in the plaint are contrary to statutory law or .
judicial dicta for deciding whether a case for rejecting the plaint at the threshold is made out, but the pleas taken by the defendant in the written statement and application for rejection of the plaint on merit would be irrelevant and cannot be adhered to for taken into consideration. A plaint has to be construed as it stands without addition or subtraction of words and if the allegations in the plaint prima facie show a cause of action, the Court cannot embark upon an inquiry whether the allegations are true in fact.
13. Coming to the facts of this case, the allegation made in the plaint is that that the Sale Deed was got executed by defendant No.1 from late Shri Manglu in his favour through General Power of Attorney (plaintiff No.1) by misleading Manglu and plaintiff No.1, which Sale Deed was a sham and thus was illegal, null and void and the subsequent Sale Deed of the suit land by defendant No.1 to defendant No.4 was also thus illegal, null and void.
14. In the considered view of this Court, these facts do disclose a cause of action. Whether this cause is justiciable or not is not an issue which the Court has to embark for adjudication at the stage of deciding an application under Order 7, Rule 11 of the Code of Civil Procedure. However, it cannot be said that the plaint does not discloses any cause of action. Further the averment made in the plaint is that the cause of action accrued in favour of the plaintiffs when defendant No.4 in the first week of November, 2018 disclosed to them that the suit land stood purchased by them from defendant No.1 and since when according to the plaintiffs, defendant No.4 was went upon to dispossess the plaintiffs from the suit land forcibly. These facts as alleged besides disclosing a cause also for the purpose of Order 7, Rule 11 of the Code of Civil Procedure prima facie lead the Court to hold that the suit cannot be dismissed on the ground of being barred by limitation, because as from the date the cause of action accrued as per plaintiffs, whether or not it is barred by limitation obviously is a mixed ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 10 2024:HHC:6556 question of fact and law taking into consideration the date on which the suit was filed.
15. In fact, Hon'ble Supreme Court of Andhra Pradesh in Khaja Quthubullah vs. Government of Andhra Pradesh and others, AIR 1995 Andhra Pradesh 43, has held that the bar of limitation has so many ingredients. If a party to a litigation sets up contention that the suit is barred .
by limitation, the Court first of all to examine (1) the cause of action in the suit, (2) when the cause of action commences, (3) when the parties act in a particular fashion as to fix the cause of action and (4) ultimately what is the result flowing from such cause of action.
16. Hon'ble High Court of Rajasthan in Mohan Lal Sukhadia University, Udaipur vs. Miss. Priya soloman, AIR 1999 Rajasthan 102, was pleased to hold that it is common knowledge that parties may make such interpretation of law as they may be advised and in matter relating to limitation, the plaintiff may assert that the period of limitation should be counted from a particular date. The defendant may or may not agree with such a view. If a controversy arises, the trial Court has to decide this controversy in accordance with law after hearing both the parties and taking such evidence regarding the disputed question of fact, as may be necessary. Such disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11, C.P.C. Clause (d) of Rule 11 of Order 7, C.P.C. applies to 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 the force.
17. Learned Trial Court while rejecting the application filed by the petitioner held that a perusal of the plaint demonstrated that the plaintiffs had taken cause of action from November, 2018 when they obtained relevant papers and therefore, their cause of action would arise when the facts in issue came to their knowledge.
18. This Court is of the considered view that taking into consideration the pleadings as are mentioned in the plaint, interest of justice demands that the suit should be tried on merit after framing the issues and further as dismissal of the application filed under Order 7, Rule 11 of the Code of Civil Procedure does not precludes the petitioners from raising all the pleas that stood raised in this application on merit also, therefore, the issue of cause of action, limitation as well as affixation ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 11 2024:HHC:6556 of appropriate Court fee in the peculiar facts of the case are best left to be adjudicated on the basis of the pleadings of the parties as well as evidence led by them in support thereto."
In view of the above, prayer was made for .
dismissing the petitions.
4. Consideration:-
Heard learned counsel for the parties and considered the case file. In my considered view, no case for interference with the impugned order or for rejecting the plaint under Order 7 Rule 11 CPC is made out. This is for the following reasons:-
4(I). It is well settled that for deciding the application moved under Order 7 Rule 11 CPC, it is only the pleadings in the plaint that are required to be considered. Order 7 Rule 11 CPC pertaining to rejection of the plaint reads as under:-
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;::: Downloaded on - 08/08/2024 20:30:04 :::CIS
12 2024:HHC:6556
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp- paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any .
cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
4(II). Cause of action:-
4(II)(a). In Dahiben's case, supra, Hon'ble Apex Court
described 'Cause of action' as under:-
"24. "Cause of action" means every fact which would be ne-
cessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.
24.1. In Swamy Atmanand v. Sri Ramakrishna Tapovanam this Court held:
"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded." (emphasis supplied) 24.2. In T. Arivandandam v. T.V. Satyapal this Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: "5. ...The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should ::: Downloaded on - 08/08/2024 20:30:04 :::CIS
13 2024:HHC:6556 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 ..."
(emphasis supplied) .
24.3. Subsequently, in I.T.C. Ltd. v. Debt Recovery Appellate Tribunal, this Court held that law cannot permit clever drafting which creates illusions of a cause of action. What is required is that a clear right must be made out in the plaint.
24.4. If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court."
4(II)(b). In the instant case, the pleaded case of the plaintiffs was that:-
(i). They were owners in possession of the suit property to the extent of their share.
(ii). The sale deed dated 25.04.2007 registered on 26.04.2008 in the office of Sub-Registrar, Nalagarh was illegal, null and void. It was not binding upon the rights, title and interest of the plaintiffs in any manner. The said sale deed was alleged to have been executed by the plaintiffs through their GPA Sh. Vinod Kumar Gupta, i.e. defendant No.2, in favour of defendant No.1 (present petitioner). The sale deed was illegal, null and void. The plaintiffs are illiterate persons. A fraud was committed upon ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 14 2024:HHC:6556 them. By way of misrepresentation, their signatures were obtained by Sh. Vinod Kumar Gupta and Sh. Pradeep Kumar by paying a nominal/small amount to them.
Sh. Vinod Kumar Gupta and Sh. Pradeep Kumar had .
projected before the plaintiffs and assured them that an agreement will be got executed with them in favour of defendant No.1/petitioner in due course of time and remaining amount will also be paid to them at the time of execution of the sale deed. Plaintiffs' signatures were also obtained on blank papers. On the basis of the signatures obtained from the plaintiffs by Sh. Vinod Kumar Gupta and Sh. Pradeep Kumar, a fraudulent GPA was forged on 21.11.2005.
(iii). On the basis of fraudulent GPA, defendant No.2- Sh. Vinod Kumar Gupta executed the sale deed in favour of defendant No.1 (petitioner). The sale deed has not been executed by the plaintiffs. The sale deed is without any consideration. The sale deed does not confer valid title upon defendant No.1 (petitioner). Plaintiffs were not even aware about the execution and registration of sale deed.
(iv). The total sale price of the disputed land has been shown in the sale deed as Rs.47,50,000/-. Defendants ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 15 2024:HHC:6556 No.1 and 2 have not made the payment of this amount to the plaintiffs.
(v). Sh. Vinod Kumar Gupta (defendant No.2-alleged GPA) as well as defendant No.1 (petitioner) kept the sale .
deed concealed from the plaintiffs and the officials of revenue department for a period of 14 years. This was an intentional act on their part as they were aware that disclosure of the sale deed would make it come to the notice of the plaintiffs.
(vi). Defendants No.1 and 2 connived with the revenue officials. The sale deed was registered on 26.04.2008 in absence of the plaintiffs. The mutation entry qua the suit land continued to be in the name of the plaintiffs. It was only recently that mutation has been entered and attested in favour of the defendant No.1 on the basis of alleged sale deed.
(vii). Relevant paragraphs from the plaint read as under:-
"3. That the alleged sale deed dated 25-04-2007 registered on 26-04-2008 in the office of Sub Registrar, Nalagarh is illegal, null and void and the same has no effect on the rights, title and interest of the plaintiff in any manner.
4. That the sale deed dated 25-04-2007/26-04-2008 is forged and fabricated and is the result of fraud and misrepresentation, the alleged sale deed dated 25-04- 2007/26-04-2008 alleged to be executed by plaintiff through alleged GPA Vinod Kumar Gupta defendant No.2 in favour of the defendant No.1 is illegal, null and ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 16 2024:HHC:6556 void and does not confer the title and interest upon the defendant No.1 on the following grounds:-
i. That said Vinod Kumar Gupta and Pardeep Kumar gave the understanding to plaintiff to complete certain formalities and to get the approval from the Govt. to develop a colony in the land in dispute and for that their consent is required.
.
ii. That the plaintiff is illiterate person and by way of fraud and misrepresentation, his signatures were obtained by said Vinod Kumar Gupta and Pardeep Kumar and in order to obtain the signature of the plaintiff, a nominal small payment was made and it was stated by them that an agreement will be got executed from him in favour of the defendant No.1 and some payment will be made at the time of the agreement and remaining amount will be paid at the time of the execution of the sale deed. Upon said signatures obtained by way of fraud and misrepresentation, a GPA dated 21-11-2005 was forged by the defendant No.1 and 2 in favour of Vinod Kumar Gupta. The defendant No.1 and 2 also obtained the signatures of the plaintiff on certain blank papers. v. That the total sale price of the land in dispute has been shown as Rs.47,50,000/- in the sale deed, whereas the defendant No.1 and 2 have not made the payment of Rs.47,50,000/- to the plaintiff or his legal heirs. Hence the alleged sale deed is without consideration and the same is illegal, null and void and does not confer the title upon the defendant No.1. No consideration has passed from the vendor to the vendee and the GPA Vinod Kumar Gupta who is the man of the defendant No.1 has not made the payment of Rs.47,50,000/- to the plaintiff.
vi. That the defendant No.1 and Vinod Kumar Gupta alleged GPA they kept the sale deed concealed from the plaintiff and from the officials of the revenue department for a period 14 years intentionally as they were aware of the fact that in case they disclose the sale deed then it will come into the notice of the plaintiff and they could be implicated in a case under section 420, 467, 468 etc. IPC as they have got the GPA and sale deed executed by way of fraud and misrepresentation.
5. That the defendant No.1 and 2 are clever persons, they connived with the revenue officials and after a period of more than 14 years they got the mutation entered in the revenue record and now they are manipulating with the ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 17 2024:HHC:6556 revenue official to get the mutation sanctioned in favour of the defendant No.1.
12. That the cause of action has arisen to the plaintiffs three days back when the defendants No.1 and 2 started to claim that they will alienate/encumber the suit land and will carve out the plots and will change the nature of the suit land and further refused to admit .
the title, right and interest of the plaintiffs at village Katha, Tehsil Baddi, District Solan (HP) within the jurisdiction of this Hon'ble court and this Hon'ble court has got the jurisdiction to entertain and try the present suit."
The plaintiffs specifically pleaded that cause of action had accrued to them three days prior to the filing of the suit. The reliefs prayed for by the plaintiffs run as under:- r "i. A decree for declaration that the sale deed dated 25-04-2007 registered on 26-04-2008 bearing Registration No.718/2008 in the office of Sub Registrar, Nalagarh alleged to be executed by Kanshi Ram and plaintiffs through GPA Vinod Kumar Gupta defendant No.2 in favour of the defendant No.1 Ashirwad Developers & Promoters Through Pardeep Kumar in respect of the land measuring 01 Bigha 07 Biswa comprised in Khewat/Khatauni No.32/32 Khasra No.557 (02-00) as given in the jamabandi for the year 2017-2018 situated in the area of village Katha, HB No.211, Tehsil Nalagarh, District Solan (HP) is illegal, null and void and is the result of fraud and misrepresentation and has no effect on the rights of the plaintiffs in any manner and ii. A decree for declaration that the plaintiffs are the absolute owners and in exclusive possession of the property in dispute and iii. A decree for permanent injunction permanently restraining the defendant No.1 not to alienate and encumber the land in dispute in any manner and not to change the nature of the suit property and further suit permanent injunction permanently restraining the defendant No.1 not to make any sort of interference in the peaceful possession of the plaintiffs in the land in ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 18 2024:HHC:6556 dispute and not to dispossess the plaintiffs from the land in dispute."
The plaintiffs have made out bundle of facts in their pleadings constituting cause of action for filing the .
civil suit for challenging the sale deed on grounds of fraud and misrepresentation etc. allegedly played upon them by the defendants. The date of accrual of cause of action has also been spelt out. Plaint, therefore, cannot be rejected under Order 7 Rule 11 CPC on count of alleged non-
4(III). Limitation:-
The
second
disclosure of cause of action.
contention of learned Senior
Counsel for the petitioner (defendant No.1) for rejecting the plaint is that the relief prayed in the plaint is barred by limitation in view of period prescribed under Articles 58 and 59 of the Limitation Act. This contention also cannot be accepted at this stage. The plaintiffs have clearly pleaded the cause of action, i.e. the facts on the basis of which relief has been claimed by them. The cause of action being that the sale deed was never executed by them. That taking advantage of their illiteracy, some signatures were got obtained from them by Sh. Vinod Kumar Gupta (defendant No.1) and Sh. Pradeep Kumar. The signatures were obtained after giving a nominal payment to the plaintiffs ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 19 2024:HHC:6556 under the promise that the sale deed will be executed in due course of time and at the stage of execution of sale deed, complete payment would be made to them, however, the signatures obtained by fraud and misrepresentation, .
were used by the defendants for forging a General Power of Attorney and on that basis, the sale deed was fraudulently executed in favour of defendant No.1 (petitioner). The plaintiffs have also pleaded that the factum of execution of sale deed had been concealed by the defendants from the officials of Revenue Department for a period of 14 years. It was only recently that a mutation had been entered on the basis of alleged sale deed. It is the case of the plaintiffs that cause of action had accrued to them three days prior to the date of filing of the civil suit. That they were not aware about the execution of sale deed previously.
In view of the facts pleaded by the plaintiffs, it cannot be said that the plaint did not disclose cause of action to the plaintiffs for filing the civil suit. For the same reason, it cannot be said at this stage that the plaint was liable to be rejected as the pleaded cause of action is barred by limitation. Section 17 of the Limitation Act provides the effect of fraud or mistake on running of limitation period as under:-
::: Downloaded on - 08/08/2024 20:30:04 :::CIS20 2024:HHC:6556 "17. Effect of fraud or mistake.- (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the .
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him.
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production.................."
As per Section 17 of the Limitation Act, in a civil suit based upon fraud of the defendant or his agent, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake or could, with reasonable diligence, have discovered it.
Plaintiffs, in their civil suit, have prayed for declaration of the sale deed as illegal, null and void on the ground of being result of fraud and misrepresentation. They certainly have a right of trial to prove their contentions and to take benefit of Section 17 of the limitation Act in accordance with law. The genuineness of their case can only be ascertained after evaluation of the evidence. At this stage, plaint cannot be rejected either on the ground of ::: Downloaded on - 08/08/2024 20:30:04 :::CIS 21 2024:HHC:6556 being barred by limitation prescribed under Articles 58 and 59 of the Limitation Act. The facts in cases cited by learned Senior Counsel for the petitioner are different. Plaint cannot be rejected on the ground that it does not disclose cause of .
action, because it does.
Learned Senior Counsel for the petitioner very fairly did not press the third ground of inadequate affixation of court fee.
5. In view of the above discussion, the view of the learned Trial Court that at this stage plaint cannot be rejected as cause of action is disclosed and the rival contentions of the parties can only be decided after considering the evidence to be adduced by them, cannot be faulted. Thus, no interference is called for with the impugned orders passed by the learned Trial Court. These petitions, therefore, lack merit and are accordingly dismissed alongwith pending miscellaneous application(s), if any.
Interim orders passed in these matters, as extended from time to time, shall stand vacated forthwith.
Jyotsna Rewal Dua
August 06, 2024 Judge
Mukesh
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