Rajasthan High Court - Jodhpur
Chandrakala vs Hapudi Devi on 16 July, 2019
Equivalent citations: AIRONLINE 2019 RAJ 735
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Revision Petition No. 124/2018
Chandrakala W/o Shantilal, Aged About 48 Years, B/c Soni, R/o
Ward No. 11, Astla Chowk, Kuchera, Tehsil Mundawa, District
Nagaur
----Petitioner
Versus
Hapudi Devi D/o Late Shri Cholaram, Aged About 58 Years, B/c
Oad, R/o Mundawa Presently Residing At Baswani, Tehsil
Mundawa, District Nagaur.
----Respondent
For Petitioner(s) : Mr. O.P. Mehta
Mr. Pradeep Gehlot
For Respondent(s) : Mr. Lal Singh Rathore
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 16/07/2019
1. The petitioner has preferred this revision petition for the following prayer :-
"It is, therefore, most respectfully prayed that this revision petition may kindly be allowed and the order dated 23.07.2018 passed by learned Civil Judge, Nagaur in Civil Original Case No.19/2016 may be quashed and set aside and the application filed by the petitioners may be allowed in terms of the prayer made therein."
2. The issue is limited and pertains to applicability of Order 7 Rule 11 CPC. Counsel for the petitioner has drawn attention of this Court to provisions of Order 7 Rule 11 (d), which reads as follows :-
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(2 of 5) [CR-124/2018] "11.Rejection of plaint - The plaint shall be rejected in the following cases :-
(d) where the suit appears from the statement in the plaint to be barred by any law;"
3. Counsel for the petitioner submits that apparently the prayer challenging sale-deed dated 26.5.1967 on the face of it is time- barred, as the plaint does not contain a single word about the delay in challenging sale-deed of 26.5.1967. Counsel for the petitioner has demonstrated from the prayer that the plaintiff- defendant is seeking quashing of sale-deed dated 26.5.1967. The prayer (Kha) of the plaint reads as follows :-
" ¼d½ ;g gS fd oknxzLr [ksr [kljk uEcj 1601 jdck 25 ch?kk 15 fcLok o [kljk uEcj 1611 jdck 25 ch?kk 11 fcLok xzke ekStk ew.Mok dk izfroknhx.k ds firk o nknk Lo- ?ksojpaan ds uke lEiw.kZ cSpku fnukad 26-05-1967 dks voS/k 'kwU; o izHkko 'kwU; ?kksf"kr fd;k tkos rFkk oknh dk mijksDr [ksrk; esa 1@2 fgLlk gksus ls fodz; esa ml gn ds vUr cSpku dks oknh ds fo:) voS/k 'kwU; o izHkko 'kwU; ?kksf"kr fd;k tkosA rFkk izfroknh la[;k 1 ds gd esa fu"ikfnr cSpku fnukad 06-01-2015 dks voS/k 'kwU; o izHkko 'kwU; ?kksf"kr fd;k tkosA"
Counsel for the petitioner has shown precedent law of Raghwendra Sharan Singh Vs. Ram Prasanna Singh (Dead) by LR's reported in 2019 DNJ (SC) 337; relevant portion the judgment reads as follows :-
" 7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 of the CPC to the facts of (Downloaded on 01/09/2019 at 10:06:06 PM) (3 of 5) [CR-124/2018] the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed.
The execution of the gift deed is not disputed by the 17 plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift. One of the executants of the gift deed - brother of the plaintiff during his lifetime never claimed that the gift deed was a showy deed of gift.
It was the appellant herein original defendant who filed the suit in the year 2001 for partition and the said suit was filed against his brothers to which the plaintiff was joined as defendant No. 10. It appears that the summon of the suit filed by the defendant being T.S. (Partition) Suit No. 203 of 2001 was served upon the defendant No.10plaintiff herein in the year 2001 itself. Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein original defendant and the mortgage deed was executed by the defendant.
Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting 18 the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7 Rule 11 of the CPC.
7.1 At this stage, it is required to be noted that, as such, the plaintiff has never prayed for any declaration to set aside the gift deed. We are of the opinion that such a prayer is not asked cleverly.(Downloaded on 01/09/2019 at 10:06:06 PM)
(4 of 5) [CR-124/2018] If such a prayer would have been asked, in that case, the suit can be said to be clearly barred by limitation considering Article 59 of the Limitation Act and, therefore, only a declaration is sought to get out of the provisions of the Limitation Act, more particularly, Article 59 of the Limitation Act. The aforesaid aspect has also not been considered by the High Court as well as the learned trial Court.
8. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial Court as well as the High Court that the question with respect to 19 the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence is concerned, as observed and held by this Court in the cases of Sham Lal alias Kuldip (supra); N.V. Srinivas Murthy (supra) as well as in the case of Ram Prakash Gupta (supra), considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) of the CPC.
9. In view of he above and for the reasons stated above, we are of the opinion that both the High Court as well as the learned trial Court have erred in not exercising the powers under Order 7 Rule 11 of the CPC and in not rejecting the plaint in exercise of powers under Order 7 Rule 11 of the CPC. For the reasons stated above, the impugned judgment and order passed by the High Court as well as the trial Court cannot be sustained and the same deserve to be quashed and set aside. Consequently, the impugned judgment and order passed by the High Court dated 12.03.2013 as well as the order passed by the Munsif, Danapur rejecting the Order 7 Rule 11 application filed by the original defendant are hereby set aside. Consequently, the application 20 submitted by the appellant herein original defendant to reject the plaint under Order 7 Rule 11 of the CPC is hereby allowed and the plaint, being Title Suit No. 19 of 2003 is hereby rejected. The present appeal is allowed accordingly in terms of the above."
4. Counsel for the respondent has opposed the submissions on the ground that half share in the registered sale-deed was already (Downloaded on 01/09/2019 at 10:06:06 PM) (5 of 5) [CR-124/2018] under adjudication before the revenue court and, therefore, his prayer was limited to challenging sale-deed dated 06.12.2015. However, counsel for the respondent could not explain challenge to the sale-deed dated 26.5.1967 as made in the prayer quoted above.
5. After hearing counsel for the parties and perusing record as also the precedent law laid down in Raghwendra Sharan Singh (supra), this Court finds that the Hon`ble Apex Court has clearly said that if it is found that the suit is clearly barred by limitation and no defence has been taken by the parties in the suit, the same can be rejected in exercise of powers under Order 7 Rule 11
(d) CPC. In this case on bare reading of the plaint this Court finds that no defence has been taken as to how the petitioner is belatedly challenging the registered sale-deed on 26.5.1967, which is clearly time barred by all means on the face of it. Since the averments of the plaint do not explain the delay, therefore, the present revision petition is allowed. The order order dated 23.07.2018 passed by learned Civil Judge, Nagaur in Civil Original Case No.19/2016 is quashed and set aside and the application filed by the petitioner under Order 7 Rule 11 CPC is allowed.
(DR. PUSHPENDRA SINGH BHATI),J 155-Sanjay/-
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