Mahipal Singh Rawat vs State Of U.P. And 4 Ors.
2017 Latest Caselaw 3293 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on 17.05.2017
 
Judgment Delivered on 17.08.2017
 
Court No. - 34
 

 
Case :- WRIT - C No. - 6512 of 2014
 

 
Petitioner :- Mahipal Singh Rawat
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Ajay Bhanot,Mamta Singh,Uma Nath Pandey
 
Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Rakesh Kr.Shukla
 
With
 
Case :- WRIT - C No. - 6514 of 2014
 

 
Petitioner :- Mahipal Singh Rawat
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Ajay Bhanot,Mamta Singh,Satyaveer Sharma,Uma Nath Pandey
 
Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Rakesh Kr.Shukla
 

 
Hon'ble Saumitra Dayal Singh,J.

These two writ petitions have been filed against identical orders, rejecting petitioner's applications filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), in two suit proceedings instituted by Manav Utthan Sewa Samiti a registered society (hereinafter referred to as the plaintiff-society), against the petitioner (hereinafter referred to as the petitioner-defendant) and certain other persons. These suit proceedings were instituted under section 229 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950.

The petitioner-defendant challenged these orders (rejecting his two similar applications), in two separate revisions. The revision applications also came to be dismissed. In these writ petitions, the petitioner-defendant has challenged both - the orders dated 24.10.2013 passed under Order VII Rule 11 CPC as also orders dated 12.12.2013 passed upon revision applications arising there from. For convenience, facts obtaining in Civil Misc. Writ Petition No. 6512 of 2014 are being narrated, since the question involved in both writ petitions is the same.

Plaintiff-society - Manav Utthan Sewa Samiti, is a society registered under the provisions of the Societies Registration Act,1860. It instituted Suit No. 01 of 2010 in the Court of Sub-Divisional Magistrate, Modi Nagar, seeking relief of declaration against the petitioner-defendant, stating therein, the plaintiff-society was a 'bhumidhar' in possession of the suit property.

Thus, plaintiff-society claimed, suit property had been purchased by it in the name of the petitioner-defendant through registered sale deeds that were got executed by the said plaintiff-society. It was further the plaint allegation - the petitioner was a 'pracharak' of the plaintiff-society and aforesaid sale deeds were executed in the name of the petitioner-defendant, in his capacity as 'pracharak' of the plaintiff-society. It is also the case of the plaintiff-society that an interim injunction was granted in its favour by the trial court that became subject matter of challenge that was carried to the Supreme Court and the interim injunction was maintained by that court as well.

In the above factual background petitioner-defendant filed an application dated 3.6.2013 in the aforesaid suit, under Order VII Rule 11 CPC, on two counts.

First, it was submitted, according to the plaint allegation, suit property had been purchased by the plaintiff-society in the name of the petitioner-defendant. Therefore, the transaction was a 'benami transaction' within the meaning of that term under the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the Act), as it stood at that time.

Therefore, it was claimed, the suit was barred under section 4 (1) of the Act. In this regard section 2(a) that defines 'benami transaction' and the provisions of section 4 as stood prior to its amendment made in 2016 read as under:-

"2. Definitions.--In this Act, unless the context otherwise requires,--

(a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;

4. Prohibition of the right to recover property held benami.--

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply,--

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity".

Then, a second ground was raised by the petitioner-defendant in his application filed under Order VII Rule 11 of CPC that the suit instituted by the plaintiff-society for relief of declaration is founded on adverse possession. Therefore, it was not maintainable.

In this regard, it was submitted, adverse possession could not be a ground to claim relief in a suit. According to petitioner-defendant, plea of adverse possession could, at best, have given rise to a defence in any suit that may be brought against the plaintiff-society.

The aforesaid application filed by the petitioner was resisted by the plaintiff-society, who filed an objection thereto.

By order dated 24.10.2013, application was rejected for reasons (i) section 4 of the Act is not applicable to the facts of the case because the plaintiff-society has remained in continuous possession for the last twenty years and (ii) according to the trial court, petitioner-defendant had delayed the suit proceedings by first filing a transfer application and later by also filing a revision.

Against the aforesaid order, petitioner preferred a revision, being Revision No. 11 of 2013-14. It came to be dismissed by order dated 12.12.2013. It was held the application filed by the petitioner-defendant under Order 7 Rule 11 was dismissed as not maintainable and that said order is an interlocutory order. Also, it was observed, evidence was yet to be led before the trial court. As such, in event of evidence being led, the revisional court has left open to the trial court to decide this question after framing proper issue.

Upon the aforesaid writ petition being filed, this Court had in the connected matter, framed a question whether the order passed by the trial court, under Order VII Rule 11 CPC, was revisable.

The petitioner has challenged, in this writ petition both the order dated 12.12.2013 passed by the trial court as also the order dated 24.12.2013 passed by the revisional Court. Therefore, aforestated question may, not detain us any longer. Even if the revision is held to be not maintainable, the original order being still under challenge, this Court would, be able to examine the correctness of the order passed by the trial court in the present writ petition.

Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Satyaveer Sharma, learned counsel for the petitioner and Sri M.C. Chaturvedi, learned Senior Counsel assisted by Sri Rakesh Kumar Shukla, learned counsel for respondent no. 5 and Sri J.N.Maurya, learned Addl. Chief Standing Counsel for the State.

Taking up the issue of the suit proceedings being barred under the Act, it was first urged, at the time of filing of the suit 'benami transaction' stood defined under the Act as one in which the transferee had not paid consideration and the person who had paid the consideration was not the transferee.

Thus, according to Shri Khare, on a plain reading of the plaint averment, it is clear, the transaction of purchase of land in the name of the petitioner-defendant, was a 'benami transaction' as defined under section 2(a) of the Act.

It was vehemently urged, a plain reading of the plaint leaves no doubt, according to the plaint case, plaintiff-society paid money to purchase the property in the name of the petitioner-defendant. Thus it was admitted to the plaintiff-society that the suit property was a 'benami' property.

Then, he submitted, under section 4 of the Act there was a prohibition against the right to recover property held 'benami'. Thus, the suit was not maintainable on behalf of the plaintiff-society who is a person claiming itself to be the real owner of the suit property.

It was further asserted the exception provided in Sub-section 3 (b) of section 4 of the Act never applied to the case of the petitioner inasmuch as it is not the case of the plaintiff-society, the petitioner held the property in fiduciary capacity for the benefit of the plaintiff-society.

Shri Khare submits, the plaint only alleged, the petitioner-defendant held the disputed property as a ''pracharak' of the plaintiff-society. It did not in any way indicate or allege or assert, the petitioner-defendant held the suit property in a fiduciary capacity in relation to the plaintiff-society. According to him, fiduciary capacity necessarily implies relationship of trust or confidence between the trustee i.e. the plaintiff-society and petitioner-defendant for the benefit of the plaintiff-society. No averment was made in the plaint to even remotely suggest existence of such fiduciary relationship between the parties to the suit.

He relies on the judgment of the Supreme Court in the case of Marcel Martins Vs. M. Printer and others reported in (2012) 5 SCC 342 which also related to proceedings under the Act. In that context the Supreme Court examined the expression of fiduciary capacity occurring in section 4(3) of the Act and thereafter held as below:-

"It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.

In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the Court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-à-vis the plaintiff-society-societys-respondents."

Shri. Khare, therefore submits, in absence of any pleading that there the petitioner-defendant stood in a fiduciary capacity to the plaintiff-society, the suit proceedings were clearly barred under section 4(1) of the Act.

Alternatively, he submitted, by Act No. 43 of 2016, section 4(3) of the Act was omitted w.e.f. 01.11.2016. Thereafter, there remains no statutory exception to the bar against the right to recover 'benami' property. The bar has become absolute. The plaintiff-society lost its right, if any, to recover the property that it claimed to be held 'benami' by the petitioner. Thus, according to Shri. Khare, after the aforesaid amendment, plaintiff-society can neither file nor maintain its suits against the petitioner after 01.11.2016.

To this end he relies on the judgment of the Supreme Court in the case of Mithilesh Kumari and another Vs. Prem Behari Khare reported in AIR 1989 SC 1247 in which case recovery suit instituted in the year 1971 (i.e. before enforcement of the Act in the year 1988) had been decreed in favour of the real owner and against the 'benami' holder. In fact first appeal and the second appeal therefrom had also been dismissed in the years 1974 and 1978, respectively. However, the matter was carried to the Supreme Court and was pending before that court when Act was enforced.

In the above factual context, the Supreme Court read and interpreted the section 4 of the Act clearly provides no suit, claim or action to enforce any right in respect of any property held 'benami' could be made by any person claiming to be the real owner such property. It was held, the bar thus created by law would apply to the facts of that case because the appeal was pending on the date of enforcement of the Act. In this regard paragraph 23 of the aforesaid judgment reads as below:-

"When the law nullifies the defences available to the real owner in recovering the 'benami' property from the benamidar the law must apply irrespective of the time of the benami transactions. The expression "shall lie" in section 4(1) and "shall be allowed" in section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or actions only. This leads us to the question whether there was a present suit between the plaintiff- society- society- respondent and the petitioner-defendant-appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the Courts below. On the date of the section 4 of the Act, coming into force, that is, 19th May, 1988 this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending?"

Similarly, it is argued, in this case, though Act No. 43 of 2016 has come into force w.e.f. 1.1.2016, and though it may be said to be prospective (as was the Act itself as when it was first enforced in 1988), the bar created by the amending Act would apply to suit proceedings that were pending from before.

In the above regard, Shri. Khare elaborated, while prohibition for making 'benami' transaction contained in section 3 of the amending Act would operate prospectively and consequentially, punishment for the same would arise in cases of whose transaction/s were performed after enforcement of that section. Yet, the prohibition against institution of a suit to recover property held 'benami', would apply to all pending proceedings that may be pending either at original stage or in appeal etc.

Then according to him, the bar to file the suit could also be examined in the revision proceedings and in any case, being a pure question of law, the same may be examined in the present writ proceedings as well.

Reliance was further placed on another judgment of the Supreme Court in the case of Om Prakash and another Vs. Jai Prakash reported in 1992 (1) SCC 710 wherein following judgment in the case of Mithilesh (supra) the Supreme Court held in para 9:-

"We find no force in the above contention of the learned counsel for the plaintiff-society-society-respondent. Special leave petition was filed against the Judgment of the High Court on 15.3.1988 and special leave was granted on 21.8.1989 after hearing both the parties. In the present case the petitioner-defendants having lost in High Court could have approached this Court only through a special leave petition under Art. 136 of the Constitution and it is only after the grant of such special leave that the appeal could be heard".

Responding to the above submission, Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Rakesh Kumar Shukla, learned counsel for plainiff-society/respondent no. 5, submits, in view of clear language of section 4(3)(b) of the Act, the bar agaist recovery the property held in trust by another person standing in fiduciary capacity with relation to the real owner/plaintiff-society, did not apply.

According to him, the plaint, at numerous places describes the petitioner as 'pracharak' of the plaintiff-society. In fact, according to him it has been clearly disclosed that the property had been purchased in the name of the petitioner because he was it's 'pracharak'. As such it is claimed, the property had been purchased in the name of the petitioner who stood in a fiduciary capacity to the plaintiff-society.

In this regard he further submits, upon such a plaint allegation, it cannot be said that the petitioner-defendant did not stand in fiduciary capacity to the plaintiff-society. Therefore, the suit could not be dismissed prematurely, by interpretting the plaint allegation in the manner proposed by the petitioner-defendant.

According to Shri. Chaturvedi, in such a case, first, an issue would have to be framed in the suit proceeding - whether the suit property had been purchased in the name of the petitioner-defendant in fiduciary capacity. Further, according to him, evidence would have to be led by the parties as to whether there existed or did not exist, fiduciary capacity of the petitioner-defendant in relation to the plaintiff-society/respondent.

In view of the above, Sri M.C. Chaturvedi further submits, on the date of the order rejecting the application under Order VII Rule 11, the trial court committed no error inasmuch as it was specifically observed that the question of bar of section 4 of the Act could be decided only after framing of issues and upon evidence being led.

Then, to the argument raised on behalf of the petitioner, section 4(3) of the Act has been omitted from the statute book w.e.f. 01.11.2016, Sri M.C. Chaturvedi submits, that amendment makes no material difference as the bar earlier contained in section 4(3), now finds place by the amendment made to the definition of 'benami transaction' under section 2(a) of the amended Act. It now reads :

"2. Definitions.-- In this Act, unless the context otherwise requires,--

(1) .........

(9) "benami transaction" means,--

(A) a transaction or an arrangement--

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by--

(i) a Karta, or a member of a Hindu Undivided Family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration for such property has been provided or paid out of the known sources of the Hindu Undivided Family;

(ii) a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, a depository or a participant as an agent of a depository under the Depositories Act, 1996 (22 of 1996) and any other person as may be notified by the Central Government for this purpose;

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;

(iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or

(B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or

(C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership;

(D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious;

Explanation.-- For the removal of doubts, it is hereby declared that benami transaction shall not include any transaction involving the allowing of possession of any property to be taken or retained in part performance of a contract referred to in Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), if, under any law for the time being in force,--

(i) consideration for such property has been provided by the person to whom possession of property has been allowed but the person who has granted possession thereof continues to hold ownership of such property;

(ii) stamp duty on such transaction or arrangement has been paid; and

(iii) the contract has been registered".

Relying on section 2(9)(A)(b)(ii) of the amended Act, he submits, upon amendment, a transaction involving property (held by one person in a fiduciary capacity) when the consideration for the same has been paid for by another, stands excluded from the definition of term 'benami transaction'.

Therefore, he submits after the enforcement of Act No. 43 of 2016, the suit property is not a 'benami' property. Therefore, the transaction of purchase of the suit property in the name of the petitioner cannot now be described a 'benami transaction'.

Having considered the submissions so advanced by learned Senior Counsel appearing for both the parties, initially, it appeared the matter may be decided on merits. However, in the context of the arguments recorded by the learned trial court and the reasoning given by that court, it does not appear to be proper for this court to, for the first time delve into the pleadings made in the plaint and to record its conclusion as to the effect thereof when none has been recorded by the trial court.

In this regard, the Supreme Court, in Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510, while laying down the principle to apply in proceedings under Order 7 Rule 11 C.P.C., held as below :

"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in 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 force".

Then, considering the earlier law on the subject, it was further observed :

"14. In Saleem Bhai v. State of Maharashtra4 it was held with reference to Order 7 Rule 11 of the Code 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 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 Order 7 Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.

15. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal5 it was held that the basic question to be decided while dealing with an application filed 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 and not 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 the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal6.)

17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill7 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 Property8 it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 was applicable."

The Supreme Court then summarised and explained the test to be applied in such cases, in the following words :

"19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.

20. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised.

21. Order 6 Rule 2(1) of the Code states the basic and cardinal rule of pleadings and declares that the pleading has to state material facts and not the evidence. It mandates that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

22. There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd.9

23. Rule 11 of Order 7 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".

Then again, in Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, the Supreme Court held :

"10. In Saleem Bhai v. State of Maharashtra1 it was held with reference to Order 7 Rule 11 of the Code 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 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 Order 7 Rule 11 of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage".

"20. There is distinction between "material facts" and "particulars". The words "material facts" show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad. The distinction which has been made between "material facts" and "particulars" was brought by Scott, L.J. in Bruce v. Odhams Press Ltd.6 in the following passage: (All ER p. 294.

"The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word ''material' means necessary for the purpose of formulating a complete cause of action; and if any one ''material' statement is omitted, the statement of claim is bad; it is ''demurrable' in the old phraseology, and in the new is liable to be ''struck out' under R.S.C. Order 25 Rule 4 (see Philipps v. Philipps7); or ''a further and better statement of claim' may be ordered under Rule 7.

The function of ''particulars' under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim -- gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial."

The dictum of Scott, L.J. in Bruce case6 has been quoted with approval by this Court in Samant N. Balkrishna v. George Fernandez8 and the distinction between "material facts" and "particulars" was brought out in the following terms: (SCC p. 250, para 29)

"The word ''material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet."

Rule 11 of Order 7 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".

(emphasis supplied)

In this case, the trial court rejected the application filed by the petitioner-defendant under Order 7 Rule 11, on two counts, namely, the plaintiff-society has been in possession for more than 20 years and because according to the trial court the petitioner-defendant had delayed the suit proceedings.

In view of the law laid down by the Supreme Court, discussed above, the first reason given by the trial court appears to be irrelevant to the issue required to be decided by the trial court whether the suit was barred under section 4 of the Act. For this, (in view of the law laid down by the Supreme Court), as discussed above, the trial court had only to examine the plaint averments. Neither, written statement was to be examined nor any evidence was to be entertained nor any issue was required to be framed.

Thus, in the facts of the present case, the trial court had to examine, whether, on a plain reading of the plaint averments (i) suit property was disclosed to have been purchased upon consideration paid by the plaintiff-society but had been transferred in the name of another, namely, petitioner-defendant. If the answer to the same would be in negative, the ground taken in the application under Order 7 Rule 11 would have to be rejected. However, if that answer were to be in the affirmative, then the trial court would have to further address itself to (ii) whether, the petitioner-defendant was claimed (in the plaint) disclosed to have stood in a fiduciary capacity to the plaintiff-society, for purpose of aforesaid transfer of the suit property. If the answer to the second question would be in the negative, then, the suit would be barred otherwise not.

In this respect, since, the plaint did not state, in so many words, that the petitioner-defendant stood in a fiduciary capacity to the plaintiff-society, the trial court should, in that case, have heard the parties on - whether, by describing the petitioner-defendant as 'pracharak', and by not stating anything more, it was the case of the plaintiff-society clear that the petitioner-defendant was a person standing in fiduciary capacity to the plaintiff-society, and not otherwise.

Only, if after such examination, the answer would remain inconclusive i.e. if on plaint averments the trial court feels the question cannot be decided without evidence, only then, it may have directed for framing of an issue to that effect, for parties to lead evidence and for the same to be decided along with other issues. However, the trial court would have to first apply its mind and address the objection raised by the petitioner-defendant. It could not skirt the issue or avoid recording its conclusion on the same while dealing with the application filed by the petitioner-defendant under Order 7 Rule 11, C.P.C.

The conclusion required to be recorded may not be, in every case be whether the suit is barred or not but whether, on a plain reading of the plaint averment as they stand, without making any addition or subtraction thereto, the suit is barred by law. In this view, it is also possible for the trial court to say, upon plain reading of the plaint, it is not possible to reach a conclusion, one way or the other i.e. whether the suit is or is not barred. However, in such case reasons would have to be stated for which it may not be possible to say so (at the stage of disposal of application under Order 7 Rule 11) and such reasons should be clear/apparent from the order of the trial court.

Looked from this perspective, in the instant case, the trial court has neither dealt with the objections raised by the petitioner-defendant and has also not indicated in any way why the objection raised under Order 7 Rule 11 may not be decided at this stage itself.

In this regard, the objection of suit being barred under section 4(1) of the Act was not affected, to any extent because the plaintiff-society pleaded continuous possession over the suit property. Enjoyment of possession was wholly irrelevant and extraneous to the objection raised by the plaintiff-defendant. The claim over possession had no bearing on the objection raised by the petitioner-defendant. To decide this objection, the trial court was required to examine the bare plaint averments in the context of the provisions of the Act, as they then existed. Unfortunately, there has been no exercise done by the trial court in that direction. Neither, there is any discussion of the plaint averments nor there is any consideration of the provisions of the Act.

Similarly, the trial court also completely failed to examine or decide the second objection raised by the petitioner-defendant that the plaintiff-society could not maintain a suit for declaration based on a plea of adverse possession.

In this regard it has been submitted by learned senior counsel for the petitioner, adverse possession could not be a ground to seek declaration by the plaintiff-society. The based on such a ground is, therefore, barred. He relies on a judgment of the Supreme Court in the case Gurudwara Sahib Vs. Gram Panchayat Village Sirthala and another reported in (2013) 4 RCR (Civil). In that judgment the Supreme Court in paragraph 7 had specifically held:-

"In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff-society-society is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as petitioner-defendant that it can use this adverse possession as a shield/defence."

Replying to the above submission, Sri Chaturvedi submits, there is no bar under the U.P.Z.A. & L.R. Act to file such a suit.

From a perusal of the impugned order passed by the trial court, it is manifest, it has not dealt with this issue either. Merely stating that the plaintiff is in continuous possession does not in any way deal with or decide the objection raised by the petitioner-defendant. The trial court had again to notice and discuss the plaint averments in that regard, the relief sought in the suit and examine the same in the context of the law that exists and thereafter record its conclusions whether the suit was barred or not.

Then in respect to delay allegedly caused by the petitioner-defendant and consequential rejection of its application under Order 7 Rule 11 C.P.C. is also not sustainable. In this regard, Supreme Court in Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59 held as below :

"21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.

22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation.

23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial court".

Again, the Supreme Court, summarised the law with respect to Order 7 Rule 11 C.P.C. in Vithalbhai (P) Ltd. v. Union Bank of India, (2005) 4 SCC 315, as below :

"22. We may now briefly sum up the correct position of law which is as follows:

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath13.) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained".

(emphasis supplied)

In the instant case, issues have yet to be framed. No evidence has been led. Thus principally, the application filed by the petitioner-defendant was not belated. Neither the petitioner can be blamed for having earlier filed a transfer application or a revision application nor could the trial court have rejected the application filed by the petitioner-defendant on that count. Having taken recourse to a legal proceeding, without anything more, may not be cited as a delaying tactic. Therefore, such application could not be rejected as delayed.

Otherwise, Order 7 Rule 11 is mandatory. If a plaint is hit by one or more of the six sub-Rules of Rule 11 of Order 7, the trial court would be obliged to reject the plaint. It would not be a matter of discretion to be exercised at a later stage. In the instant case, the petitioner-defendant set up a case under sub-Rule (d) of Rule 11 of Order 7, C.P.C. on two counts. First, the suit was claimed to be barred by section 4(1) of the Act and second, it was claimed to be barred, because it was based on plea of adverse possession.

The trial court was obliged to decide both objections. It has neither dealt with nor decided either objection. For that reason, it would not be desirable for this court to itself examine those issues and return findings in present writ proceedings.

In view of the above, the order dated 24.10.2013 passed by the Trial Court on the application of the petitioner-defendant under Order 7 Rule 11 C.P.C. and order dated 12.12.2013 passed by the revisional court are set aside. The matter is remitted to the Trial court to decide the aforesaid application afresh in accordance with law, keeping in mind the observations made above with respect to the requirements to be met by the order to be passed by that court. It is further clarified, it would be open to the parties to raise submissions in view of the amendments made to the Act in the year 2016 and it would be open to the trial court to examine the effect of those amendments on the proceedings being remanded.

The writ petition is allowed. No order as to costs.

Order Date:- 17.08.2017

A. Singh