Himachal Pradesh High Court
Devi Ram vs Mohender & Ors on 10 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 87/2023 .
Decided on: 10.03.2023
Devi Ram ...Petitioner
Versus
Mohender & Ors. ....Respondents.
................................................................................... Coram Hone'ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting?1 For the petitioner: Mr. Sanket Sankhyan, Advocate.
For the respondents: r Nemo.
Jyotsna Rewal Dua, Judge
The petitioner is aggrieved by the order dated 17.12.2022, whereby his application under Order 7 Rule 11 of the Code of Civil Procedure (CPC) for rejection of plaint was dismissed by the learned trial Court.
2. Respondent No.1 filed a civil suit against the petitioner (defendant No.1). The suit was with the prayer for decree of declaration that the plaintiff is joint owner in possession of suit land alongwith defendant No.1 and proforma defendants No.2 to 6.
Further declaration was prayed for that the family settlement deed dated 22.12.2014 be declared as illegal, void ab-initio and not binding upon the plaintiff and proforma defendants. Consequential relief of permanent prohibitory injunction for restraining the defendant 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 10/03/2023 20:36:35 :::CIS 2from interfering into joint ownership and possession of plaintiff over suit land, was also prayed for. In the alternative, decree for joint .
possession was also requested.
Defendant No.1 (present petitioner) filed his written statement. Thereafter an application under Order 7 Rule 11 of the Code of Civil Procedure was also moved by defendant No.1 for the rejection of plaint. The rejection was prayed on the ground that the plaint did not disclose any cause of action and the relief prayed for was barred by limitation. It was pleaded that father of the parties, Sh.
Dhani Ram had died on 21.01.2017 and the suit for declaration was filed filed more than three years after his death.
3. Learned Trial Court did not find favour with the contentions of defendant No.1 and accordingly dismissed the application on 17.12.2022. In the aforesaid background, defendant No.1 has moved this Court in exercise of its supervisory jurisdiction.
4. Learned counsel for the petitioner submits that in terms of Section 3 read with Article 58 of the Limitation Act, the period for filing the suit for declaration is three years from the date when the right to sue first accrues. Learned counsel, therefore, submits that the application moved by defendant No.1 for rejection of plaint was wrongly dismissed as Sh. Dhani Ram, father of the parties had died on 21.01.2017. The suit filed by defendant No.1 on 08.03.2022 was barred by limitation.
::: Downloaded on - 10/03/2023 20:36:35 :::CIS 35. It is well settled that while considering the application for rejection of plaint moved under Order 7 Rule 11 CPC, it is only the .
averments made in the plaint that are required to be gone into. In the plaint, it has been specifically pleaded that Sh. Dhani Ram died on 21.01.2017 and after his death the succession was opened; suit land was inherited by the plaintiff, defendant No.1 and proforma defendants in equal shares. Plaintiff has also pleaded that it was only in January 2022 when he had ventured to collect the revenue record in order to seek partition of the suit land that he became aware of the fact that his name and that of proforma defendants were missing from the revenue record. His further pleading is that defendant No.1 has fraudulently manipulated the Family Settlement Deed in absence of plaintiff & proforma defendants qua suit land, in his name on 22.12.2014 and therefore, the said family settlement deed is illegal, void ab-initio. Plaintiff has pleaded that cause of action accrued to him on 06.03.2022 when defendant No.1 threatened to dispossess him from the suit land.
The parties are yet to prove their respective contentions during trial. In the pleaded facts of the case, learned Trial Court justly held that the point of limitation requires to be decided along with the other issues between the parties and correctly dismissed the application moved by defendant No.1 under Order 7 Rule 11 CPC.
Reference in this regard can be made to 2018 (6) SCC 422 ::: Downloaded on - 10/03/2023 20:36:35 :::CIS 4 (Chhotanben & Another Vs. Kiritbhai Jalkrushnabhai Thakkar & ors.). Relevant paragraph of the judgment reads as under:-
.
"In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order 7 Rule 11(d) CPC.
In view of above, no interference is called for. The petition is dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.
Needless to say that the observations made by this Court and by learned Trial Court while dismissing the application under order 7 Rule 11 CPC shall remain confined to the adjudication of the said application. Learned Trial Court shall decide the main case without being influenced by the said observations.
Jyotsna Rewal Dua Judge 10th March 2023 (rohit) ::: Downloaded on - 10/03/2023 20:36:35 :::CIS