Chattisgarh High Court
Devnath Kansari vs Manoj Kansari on 28 March, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 12
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR No. 30 of 2022
Devnath Kansari S/o Shri Ramchandra Kansari Aged About
43 Years Occupation Photo Framing Caste Kasgadiya,
Resident Of Mohalla Kedarpur, Near Tiwari Building City
Ambikapur, Police Station And Tahsil Ambikapur, District
Surguja (C.G.)
---- Petitioner
Versus
1. Manoj Kansari S/o Shri Krishna Mohan Kansari, Aged
About 35 Years R/o Kedarpur, Near Tiwari Building City
Ambikapur, Police Station And Tahsil Ambikapur, District
Surguja (C.G.)
2. Ramchandra Kansari, S/o Late Kusu Sahu Aged About 65
Years Occupation - Utensils Shop Caste Kasgadiya, R/o
Mohalla Kedarpur, Near Tiwari Building City Ambikapur,
Police Station And Tahsil Ambikapur, District Surguja
(C.G.)
3. Smt Samlai Devi Wd/o Late Indra Mohan Kansari, Aged
About 47 Years Occupation House Wife, Caste Kasgadiya,
R/o Mohalla Kedarpur, Near Tiwari Building City
Ambikapur, Police Station And Tahsil Ambikapur, District
Surguja (C.G.)
4. Rajesh Kansari, S/o Late Indra Mohan Kansari Aged About
27 Years Occupation - Unemployed Caste Kasgadiya, R/o
Mohalla Kedarpur, Near Tiwari Building City Ambikapur,
Police Station And Tahsil Ambikapur, District Surguja
(C.G.)
5. Krishna Mohan Kansari, S/o Late Kusu Sahu, Aged About
62 Years Occupation - Feri Vyapari Caste Kasgadiya, R/o
Mohalla Kedarpur, Near Tiwari Building City Ambikapur,
Police Station And Tahsil Ambikapur, District Surguja
(C.G.)
6. Vinod Kumar Kansari S/o Late Kusu Sahu Aged About 48
Years Occupation - Electrician Caste Kasgadiya, R/o
Mohalla Kedarpur, Near Tiwari Building City Ambikapur,
Police Station And Tahsil Ambikapur, District Surguja
(C.G.)
---- Respondents
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For petitioner : Mr. B.P. Sharma, and Ms. Anuj Sharma, Advocates.
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Hon'ble Shri Justice Narendra Kumar Vyas Order on Board Page 2 of 12 28-03-2022
1. The petitioner has preferred the instant Civil Revision against the order dated 11-3-2022 passed by the learned First Additional District Judge, Ambikapur, District Surguja (CG) in Civil Suit No. 27-A/15, (Manoj Kansari vs. Ramchandra Kansari and another) whereby the learned District Judge has rejected the application filed by the defendant No.6/petitioner - Devnath Kansari. under Order 7 Rule 11 of the CPC.
2. The brief facts are that the plaintiff has filed a civil suit for declaration and partition mainly contending that the original plaintiff Smt. Chandrama Devi is wife of late Kusu Sahu. Late Kusu Sahu was first married to late Badan Bai who died 55 years ago after delivering birth to defendant No.1. After death of Badan Bai, Late Kusu Sahu got married with plaintiff i.e., Smt. Chandrama Devi and from their wedlock, Krishna Mohan Sahu, Indra Mohan, Vinod, Santosh were born. It has been contended that one of his sons namely Indra Mohan died prior to 7 - 8 years and Santosh is not traceable for the last 9 - 10 years. Defendants No. 2 and 3 are wife and daughter of late Indira Mohan Kansari, as such defendants No. 1 to 5 and plaintiff are the legal representatives of late Kusu Sahu. Since they are Hindus, they are governed by Hindu law. It is stated that late Kusu Sahu in his life time, acquired Nazul Plot No. 151 area 0.16 acres situated at village Kedarpur, Ambikapur, District Surguja, wherein they are residing in subsequent place which is termed suit property.
3. It has been further contended that Kusu Sahu died on 20-3- 2000, as such plaintiff and defendant No.1 to 5 have inherited the property as successors. It has been further contended that after death of Kusu Sahu, plaintiff/defendants No. 4 and 5 have initiated proceedings for recording their names before the Nazul Officer, Ambikapur, which is still pending. It is pleaded that after notice of application for mutation, defendant No.1 with an object to institute mutation proceedings with collusion of defendant No.6 and filed an application for recalling of the order on the basis of forged and fabricated will which is pending. On the above factual matrix of the Page 3 of 12 case, it is prayed that plaintiff Chandrama Devi has right of share of 1/5 share (it means 3.2 decimal) of the property suit owned by Kusu Sahu.
4. After service of summons, defendant No.6/applicant herein appeared before the court below and filed written statement wherein it has been contended that Kusu Sahu died on 19-3-2000 the question of treating plaintiff and defendants No. 2 to 5 as legal representatives of late Kusu Sahu does not arise. It has been further contended that deceased Kusu Sahu solemnized marriage with Badan Bai only and out of their wedlock one Ramchandra Kansari was born and he has given birth to two sons and two daughters namely Devnnath Kansari, Geeta Kansari, Tara Kansari and Sambhunath Kansri. It has also been contended that in the life time of Kusu Sahu without any pressure he has executed a will on 7-10-1997 of self acquired property, as such on the basis of will, the Nazul Officer, Ambikapur has directed for recording the name of defendant No.6 in the revenue records vide order dated 10-5- 2016. Therefore, defendant No.6 is title holder of the suit property. It has also been contended that the suit has been filed with malafide intention just to harass the defendant No.6, therefore, it is liable to be rejected. It has been further contended that the plaintiff has no relationship with Kuso Sahu and claiming herself to be wife of Kuso Sahu, therefore suit which has been filed deserves to be rejected.
5. On the pleadings of the parties, learned trial Court has framed as many as six issues, thereafter, defendant No.6 had earlier filed an application under Order 7 Rule 11 of CPC for rejection of the plaint which has been dismissed by the learned trial court vide its order dated 4-11-2017 and thereafter he has filed an application under Order 7 Rule 11 of C.P.C., on 23-11-2021 contending that the plaintiff has no relation with Kusu Sahu and on the basis of death certificate of Kuso Sao in which date of death is mentioned as 20-3-2000 they are trying to grab the suit property whereas Kusu Sahu died on 19-3-2000. In the suit, two sets of death certificates have been filed; one is in the name of Kusu Sahu and another is in the name of Kuso Sao, whereas the property has Page 4 of 12 been recorded in the name of Kuso Sahu and name of plaintiff namely Smt. Chndrama Devi has not been recorded in the revenue records. It has been further contended that the plaintiff has shown Kusu Sahu as husband where the suit property has been recorded in the name of Kuso Sao. They have filed the suit to grab the property of Kusu Sahu on the basis of death certificate dated 20-3-2000 of Kuso Sao, as such the application filed by the present applicant may kindly be allowed and suit may kindly be dismissed in view of the provisions of Order 7 Rule 11 (a) of CPC.
6. Learned trial Court after hearing the parties vide its order dated 11-3-202 has dismissed the said application by recording a finding which is extracted as under:
^^ mijksDr leLr dk;Zokgh ftlesa izfroknh dzekad&6 dh vksj ls izLrqr vkosnu dk fujkdj.k fnukad 12&10&2021 Hkh lfEefyr gS] vkns'k if=dkvksa ds voyksdu ls nf'kZr gS ,oa mDr leLr ds ckn fnukad 23&11&2021 dks izfroknh dzekad&6 dh vksj ls izLrqr ;g vkosnu varxZr vkns'k 7 fu;e 11 O;0iz0la0 okn dks fujLr djus ds fy, izLrqr fd;k x;k gS ftlesa mYysf[kr rF;@vk/kkj lk{; dh fo"k;oLrq gS ,oa bl Lrj ij mDr vkosnu izdj.k dks fyaxj vkWu djus okyk ,oa vkSfpR;ghu izrhr gksrk gS A izdj.k 05 o"kZ ls vf/kd vof/k ds iqjkus izdj.kksa dh Js.kh esa gksus ls bldk 'kh?kz fujkdj.k fd;s tkus ds funsZ'k eku~uh; mPp U;k;ky; ls izkIr gS A mDr lEiw.kZ dzekad&6 dh vksj izLrqr vkosnu vaoxZr vkns'k 7 fu;e 11 O;0iz0la0 fujLr fd;k x;k tkrk gS**A
7. Learned trial court has also recorded a finding that the case is pending since 2016 and earlier also defendant No.1 has filed an application under Order 7 Rule 11 of CPC which was rejected by the trial court vide its order dated 4-1-2017, considering the present application, the trial court has recorded a finding that in application field by defendant on 23-11-2021 stand has been taken in the plaintiff is the subject matter of evidence, therefore, it cannot be adjudicated at this juncture and it amounts to adopting the delay tactics, therefore, the trial court has rejected the Page 5 of 12 application and fixed the case on 22-3-2022, for recording of evidence.
8. Learned counsel for the petitioner would submit that the document is a part of plaint, therefore, learned trial court should have allowed the application filed under Order 7 Rule 11 of CPC. He would further submit that date of death of Kuso Sao is 20-3- 2000 whereas the date of death of Kusu Sahu is 19-3-2000 and the property has been recorded in the name of Kuso Sahu who died on 19-3-2000. he would further submit that the trial court while rejecting the application has not considered the relevant aspects of the matter and suit should have been dismissed under Order 7 Rule 11 of CPC.
9. I have heard learned counsel for the petitioner and perused the documents annexed with the civil revision.
10. Learned counsel for the petitioner would submit that document annexed with plaint is a plaint averment, as such from bare perusal of the death certificates, there is no cause of action arisen, therefore, should have been rejected by the trial court. In support of his arguments he relied upon the judgment of Hon'ble Supreme Court in the matter of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through legal representatives and others1, wherein it has been held as under.
"23.7 Order VII Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under :
"Order 7 Rule 14: Production of document on which plaintif sues or relies.- (1)Where a plaintif sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at 2 Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I & Anr., (2004) 9 SCC 512. the same time deliver the document and a copy thereof, to be fled with the plaint.
(2)Where any such document is not in the possession or power of the plaintif, he shall, 1 (2020) 7 SCC 366 Page 6 of 12 wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintif when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintif's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied) 23.8 Having regard to Order VII Rule 14 CPC, the documents fled alongwith the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11
(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
11. In Bhagwan Das vs. Goswami Brijesh Kumarji and others2, Hon'ble High Court of Rajasthan held in para 7 which is extracted as under:
"7. Learned counsel for the opposite party may be right in urging that if the plaint is based on a document, then such a document may be considered as forming part of the plaint itself and the document can also be looked into, while considering the averments of the plaint, for the purpose of deciding the question that the plaint discloses a cause of action or not. But it has to be remembered that the averments made in the plaint as well as the contents of the document which may constitute part of the plaint, can be looked into on the face value thereof and the question relating to the validity or invalidity of the document cannot be considered at the stage of deciding an application under Order 7. Rule 11, C. P. C."
12 In Sukhpal Singh vs. State of Rajasthan and others,3 Hon'ble High Court of Rajasthan has held in para 17 which reads as under:
2 (1983) AIR (Raj) 3 3 (1998) AIR (Raj) 103 Page 7 of 12
17. The issue of applicability of this Rule 7, Order 11, C.P.C. was considered by the Hon'ble Supreme Court in T. Arivandandam v. T.V. Satyapal, AIR 1977 SC 2421, and it was observed that the Court must give a meaningful reading to the plaint and if it is manifestly vexatious or merit less and in the sense of not disclosing a clear right to sue, the Court may exercise its power under Order 7, Rule 11, C.P.C. However, the Court has to take care that the grounds mentioned therein must be fulflled and while doing so, the Court does not have to decide the legal issues. However, in a case where the validity of a particular document itself is under challenge, the same cannot be considered and decided. The application under Order 7, Rule 11, C.P.C. cannot be allowed.
13. In Lukehwar and others vs. Dhebar Singh 4 and others , Hon'ble High Court of Madhya Pradesh, has held as under:
"It is undisputed preposition of law that a plaint can be rejected only when on reading of the plaint itself, either it does not disclose a cause of action or it appears to be barred by some law. The courts are not entitled to travel beyond the pleadings of the plaint. If the defendants plead that the shit is barred by some law because of some additional factors pleaded by him, then he has to establish these factors. It is not as if a defendant were saying that a dispute is referable to arbitration and therefore, he will plead no more and that the suit should be stayed under Section 34 of the Arbitration Act is decided".
14. In Abdul Sattar Shaikh vs. State of Goa, 5 Hon'ble Supreme Court has held in para 9 which is extracted as under.:
"9. Taking note of the said observations. I find that the learned Judge has wrongly considered whether the appellants have a cause of action though what was expected of the learned Judge was to examine whether the plaint itself discloses a cause of action. The truthfulness or otherwise of the allegations in the plaint cannot be examined 4 (2000) 3 MPLJ 135 5 2017 SCC online Bom 2993 Page 8 of 12 while considering the application under Order VII Rule 11 of the Civil Procedure Code. In case any averments in the plaint are false, the consequence in law would follow. But however, on going through the plaint, it is the case of the appellants that they are occupying the structures in the subject property before the year 2000 and further that the applications for regularization of such structures are pending based on the amendment to the Code of Communidade before the learned Collector. It is also pointed out that the orders impugned are in breach of the principle of natural justice. It is further contended that based on such erroneous orders, the appellants cannot be evicted from the subject structures. Whether these averments would be a cause of action to the appellants to file a suit is not a matter which the learned Judge can consider after examining the defence of the respondents. In such circumstances, I find that the learned Judge was not justified to pass the impugned judgment and reject the plaint. Needless to say, all the contentions of the parties on merits are left open"
15. From perusal of the documents annexed with the civil revision, it reveals that two sets of death certificates are available;
one is in the name of Kuso Sao who died on 20-3-2000 and second is in the name of Kusu Sahu who died on 19-3-2000.
Whether the property has been recorded in the name of Kusu Sahu or Kuso Sao is a matter of enquiry to be conducted by the trial court and after appreciating the evidence and material on record. The foundation which has been put-forth by the applicant that property has been recorded in the name of Kuso Sao, who died on 20-3-2000 or in the name of Kusu Sahu who died on 19-3- 2000 is a matter of evidence and it has to be decided by the trial Page 9 of 12 court which is a out side subject matter for consideration of application under Order 7 Rule 11 of CPC .
16. The contention of learned counsel for the petitioner that whether the property has been recorded in the name of Kuso Sao who died on 20-3-2000 and whether property is recorded in the name of Kusu Sahu who died on 19-3-2000 is one and same person, can also be ascertained by the evidence adduced before the trial court., therefore, submission made by learned counsel for the petitioner that since in the death certifcate of Kuso Sao, his date of death mentioned as 20-3-2000, is true or correct, this cannot be considered at this juncture and on the basis of death certifcate no cause of action has been arisen, cannot be considered, as such no ingredient under Order 7 Rule 11 of CPC for rejection of the plaint is made out.
17. Hon'ble the Supreme Court while examining the power of the trial court to reject the case as per provisions of Order 7 Rule 11 of CPC has examined the earlier case laws. in the matter of Shakti Bhog Food Industries Ltd. Vs. The Central Bank of India and another 6 Hon'ble Supreme Court has held as under.
"Indeed, Order VII Rule 11 of the CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta vs. Rajiv Kumar Gupta & Ors.2. In paragraph Nos. 13 to 20 of the reported decision, the Court observed as follows: "13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:
"(a) where it does not disclose a cause of action;
6 (2020) 17 SCC 260.
Page 10 of 12(b) where the relief claimed is undervalued, and the plaintif, on being required by the court to correct the valuation within a 2 (2007) 10 SCC 59 time to be fxed 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 plaintif, on being required by the court to supply the requisite stamp paper within a time to be fxed 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 fled in duplicate;
(f) where the plaintif fails to comply with the provisions of Rule 9."
14. In Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that "9. ... 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 ... 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,..." (SCC p. 560, para 9).
15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal [(1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application fled under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16. "The trial court must remember that if on a meaningful--no formal--reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulflled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the frst hearing by examining the party searchingly under Order 10 CPC." (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.).
17. It is trite law that not any particular plea has to be considered, and the whole plaint has Page 11 of 12 to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to fnd out whether Clause (d) of Rule 11 of Order 7 was applicable.
11. This position was explained by this Court in Saleem Bhai vs. 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 3 (2012) 8 SCC 706 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 fle 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 scrutinize 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 averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express, (2006) 3 SCC
100."
18. From the submissions made by learned counsel for the petitioner, it is clearly vivid that no ground for dismissal of the Page 12 of 12 suit as enumerated by the various High Courts and judgment of Hon'ble Supreme Court, is made out, therefore civil revision deserves to be and is hereby dismissed at motion hearing stage itself.
19. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Raju