Madhya Pradesh High Court
Foti Rakabhchand Jain S/O Surajmal Jain ... vs Foti Ratanlal Jain S/O Champalal Jain ... on 19 January, 2022
Author: Anil Verma
Bench: Anil Verma
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
SINGLE BENCH : HON. SHRI JUSTICE ANIL VERMA
CIVIL REVISION NO. 220/2021
Foti Rakabchand Jain through LRs
Vs.
Foti Ratanlal Jain through LRs
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Shri V.K. Jain learned senior counsel with Shri Vaibhav Jain,
learned counsel for the petitioner.
Shri A.S. Garg, learned senior counsel with Ms. Nidhi Bohra,
learned counsel for the respondent.
Shri Amay Bajaj, learned PL for State.
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Whether approved for reporting :
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ORDER
(Passed on 19/01/2022) The petitioner/defendant has filed the present revision petition under Section 115 of the Code of Civil Procedure, 1908 ( in short"CPC") being aggrieved by order dated 30.8.2018 passed by Civil Judge Class II Jobat District Alirajpur in civil suit No. 22-A/2018 by which application under Order 7 Rule 11 of CPC has been rejected.
2. Facts of the case in short are that present respondent no.1 has filed a suit for declaration and cancellation of sale deeds dated 30.8.1966 and 13.8.1976 against the petitioner. It is further prayed in the suit that possession of suit land shall also be handed over to the plaintiff. After service of notice upon the petitioners/defendants they have marked their appearance and filed an application under Order 7 Rule 11 CPC praying for rejection of the suit. The respondent/plaintiff has filed reply of the application.
3. Learned trial court vide impugned order dated 30.8.2018 has dismissed the application filed by petitioner. Hence this petition is filed by petitioner before this Court.
4. Learned counsel for the petitioner submits that respondent no.1/plaintiff has filed the suit for grant of relief of declaration and cancellation of sale deeds dated 3.8.1966 and 13.8.1976 against the petitioner. As per averments in the suit, father of respondent no.1 Bhuvan Bhil has been granted certain land (including the disputed land) on lease by state government. As per averments made in the suit Ratanlal was Sahukar and suit land was kept mortgaged with Ratanlal. Father and grand-father of Bhuvan Bhil were unable to pay the outstanding dues. Ratanlal has initiated proceedings under Section 165(6) of MP Land Revenue Code ( in short "MPLRC"). The said proceedings were decided in favour of Ratanlal and suit land was sold out by sale deeds dated 3.8.1966 and 13.8.1976. After obtaining permission from the Collector Bhuvan Bhil and his legal representatives have initiated proceedings under Section 170B of MP LRC before the SDO and SDO vide order dated 28.2.2015 has found that transfer was bonafide and has dismissed the application. He submits that Section 257 of MPLRC clearly states that no civil court shall exercise jurisdiction over any of the matter narrated in this section. Therefore, the trial court has erred in passing the impugned order without considering the factual aspects of the case. He submits that present suit is clearly hit by provisions of Section 170- B and Section 257 of MPLRC. The trial court has wrongly come to the conclusion that civil court is competent to decide the issues whereas the provisions of section 257 of the Code has created clear barrier on entertaining such suit. Therefore, he prays that the impugned order dated 30.8.2018 be set aside.
5. Learned counsel in support of his contention placed reliance upon judgment of the coordinate bench of this Court in the case of Anita Jain Vs. Dilip Kumar and others reported in 2018(1) MPLJ 554 wherein it has been held as under:-
""In light of the aforesaid judgment it can be safely gathered that the plaintiffs were having knowledge of the sale deed which was executed in the year 2010 and therefore, as the limitation provided is only three years for challenging the sale deed, the issue framed by the trial Court in respect of limitation has to be answered in favour of the defendants.
In another case Nanhibai Vs. Govindrao reported in 2006(iii) MPWN 88 in paragraph No.9, this Court has held as under:-
"9. Regarding substantial question of law No. (b) : The gift deed is dated 6-2-1976 and the suit for its cancellation has been filed by the Plaintiff on 6-4-1986. Under Article 59 of the Indian Limitation Act, the prescribed period/of limitation is three years from the date of execution of instrument first become knowledge to the Plaintiff. It is no more in dispute that Ex. D-l gift deed dated 6-2-1976 is very well in the knowledge of the Plaintiff right from the day of its execution and, therefore, the suit for cancellation of document ought to have been brought within three years from this date. Since the suit has been filed on 8-4-1986, therefore, it has become time barred. Substantial question of law No. (b) is thus, answered accordingly."
In light of the aforesaid, as civil suit was filed after six years from the date of execution of the sale deed praying declaration of sale deed as null and void, the suit was certainly barred by limitation in light of Article 59 of the Limitation Act.
6. Learned counsel for the petitioner has also placed reliance upon the judgment of Hon'ble Apex Court in the case of Ramti Devi ( Smt) Vs. Union of India reported in 1995(1) MPWN 186 and judgment of co-ordinate Bench of this Court in the case of Shantilal Vs. Chandanmal reported in 2011(2) JLJ 66.
7. Per-contra, learned counsel for the respondent has supported the reasoning given by the trial Court in the impugned order and submitted that the matter is not covered under section 257 of MPLRC, therefore, the Civil Court has jurisdiction to entertain the matter and this revision petition should be dismissed.
8. To bolster his contention, learned counsel for the respondent has placed reliance upon the judgment of Hon'ble Apex Court in the case of Mohit Bhargava Vs. Bharat Bhushan Bhargava reported in (2007) 4 SCC 795; Saleem Bhai and others Vs. State of Maharastra and others reported in (2003) 1 SCC 557; Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and other reported in (2004) 10 SCC 65 and Chambaram S/o Gangaram Vs. Chanda and others reported in 1993 MPLJ 80
9. I have given my anxious consideration to the submissions advanced by the parties and have carefully examined the documents filed along with the present revision.
10. The trial Court has dismissed the application filed on behalf of the petitioner under order 7 Rule 11 of CPC. On the basis of that, the matter should be adjudicated on the basis of the pleadings filed by the defendant and other objections should be decided on the basis of the evidence given by both the parties on merit. Therefore, short question that arises for consideration of thie petition is whether an application under Order 7 Rule 11 of CPC ought to be decided on the allegations in the plaint and filing of the written statement and evidence on merit is irrelevant and unnecessary.
11. Order VII Rule 11 C.P.C. 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 by 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, failed 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;
(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 great injustice to the plaintiff."
12. A perusal of Order VII Rule 11 C.P.C. 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 VII Rule 11 C.P.C. 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 VII C.P.C. 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 VII Rule 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non- exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects.
13. In the case of Sapan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others reported in (2004) 3 SCC 137, Hon'ble Apex Court has observed as under :
"Rule 11 of Order VII lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word 'shall' is used clearly implying thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
In the case of Sajjan Sikaria and others Vs. Shakuntala Devi Mishra and others reported in (2005) 13 SCC 687, the Apex Court has in a similar situation observed as under :
"3. We find that the directions for consdiering the question relating to Order 7 Rule 11 ofCPC as preliminary issue is not correct asthat would necessitate filing of a written statement. It is a settled position in law tht while dealing with an application under Order 7 Rule 11, CPC, consideration of writtene statement is not a condition precedent and only averments in the plaint have to be considered ...... "
14. Refusal by the Civil Judge, Class-II, Jobat, District - Alirajpur to consider the application filed under Order 7 Rule 11 of CPC on merit on the ground that this petition will be deciced on the basis of pleadings filed by the defendant. The lower Court acted illegaly in exercise of its power because for the purpose of deciding the application under Order 7 Rule 11 of CPC , the averment in the plaint alone are germane and pleas to be taken bythe defendant in the written statement were wholly irrelevant. The use of the word "shall" in order 7 Rule 11 of CPC casts a duty on the Court to perform its obligations in rejecting the plaint where the same is hit by any of the infirmities provided under Order 7 Rule 11 of CPC, even without intervention of the defendant, therefore, it is clear that the impugned order passed by the Civil Judge, Class-II, Jobat, District - Alirajpur on 30/08/2018 in Civil Suit no. 22-A/2018 rejecting the application under Order 7 Rule 11 of CPC on the ground that this petition will be decided on merit after completing the evidence of both the parties on merit and on the basis of written statement filed by the defendant was contrary to law and therefore, is liable to be set aside.
15. In view of the aforesaid, this Court is of the considered view that for the aforementioned reasons, the impugned order is liable to be set aside. Accordingly, this Court remit back the case to the trial Court for deciding the application filed under Order 7 Rule 11 of CPC on the basis of the averments in the plaint after affording an opportunity of being heard to the parties in accordance with law.
16. Present civil revision is accordingly, allowed.
There shall be no order as to costs.
A copy of this order be sent to the Court of Civil Judge, Class-II, Jobat, District - Alirajpur forthwith.
CC as per rules.
(Anil Verma) Judge DJ/amol Digitally signed by AMOL N MAHANAG Date: 2022.01.20 10:39:58 +05'30'