Narayan Singh And 2 Others vs Ratan Lal (Since Deceased) And 9 ...
2022 Latest Caselaw 7726 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved on 15.07.2022
 
Delivered on 22.07.2022
 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 571 of 2022
 
Appellant :- Narayan Singh And 2 Others
 
Respondent :- Ratan Lal (Since Deceased) And 9 Others
 
Counsel for Appellant :- Alok Kumar Yadav,Ishwar Chandra Tyagi
 
Counsel for Respondent :- Nipun Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Alok Kumar Yadav, learned counsel for the appellants and Sri Nipun Singh, learned counsel for the respondents.

2. This is defendants' second appeal filed under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as ''C.P.C.') against judgment and order dated 28.04.2022 passed by Additional District Judge, Court No. 3, Gautam Budh Nagar in Civil Appeal No. 3 of 2020, setting aside the order of trial court dated 24.12.2019 passed in Original Suit No. 88 of 2018 allowing the application under Order 7 Rule 11(d) of C.P.C. and rejecting the plaint of the plaintiffs-respondents.

3. Facts in nutshell, are that plaintiffs, Ratan Lal and Rewati were sons of Itwari Lal and had the third brother named Kirori. Kirori had died earlier. He had one son, Dalu who was issue-less, and had three real sisters, while had one step sister, Rampyari. The three sisters of Dalu had predeceased. According to plaint averment, Dalu died on 02.02.1981, while a Will was said to have been prepared on 28.01.1982 which was registered before the Sub-registrar, Khurja, District- Bulandshahar on 11.02.1982 bequeathing the agricultural land in favour of Rampyari. Rampyari before her death had executed a Will in favour of defendants-appellants on 30.10.2015. The plaintiffs-respondents were in possession over the property and they came to know about the said fact on 11.12.2017 and 27.05.2018, thus, a suit for cancellation of the Will dated 28.01.1982 registered on 11.02.1982 was filed being Original Suit No. 88 of 2018. The said suit was contested by defendants-appellants and a written statement was filed on 16.10.2018 alleging that Dalu had died on 20.09.1984. An application under Order 7 Rule 11(d) C.P.C. was filed on 16.10.2018 along with an affidavit being Paper No. 14 (Ga)(2) for dismissing the plaint as the suit being barred by limitation. The trial court on 24.12.2019 allowed the application filed under Order 7 Rule 11(d) of the appellants and dismissed the suit. Against the said judgment, Civil Appeal No. 3 of 2020 was filed before Additional District Judge, Court No. 3, Gautam Budh Nagar and the court below framed following point of determination:-

"क्या दावा वादी अन्तर्गत आदेश 7 नियम 11 सी.पी.सी. निरस्त किये जाने योग्य है"

4. The lower appellate court found that question of limitation was a mixed question of law and fact and the trial court having considered the documentary evidence filed in support of the plaint had wrongly dismissed the suit, and thus, allowed the appeal vide judgment dated 28.04.2022 and set aside the order dated 24.12.2019. Hence, the present appeal.

5. Sri Alok Kumar Yadav, learned counsel for the appellants submitted that the Will executed by Dalu in favour of Rampyari was of the year 1982 and the suit was filed in the year 2018 i.e. after more than 36 years and thus court below had rightly rejected the suit under Order 7 Rule 11 of the Code. According to him, the trial court after going through the averment of plaint found that plaintiff had failed to disclose that when he got the knowledge of execution of a Will and once the name of appellants were recorded over the revenue records on the basis of Will of 1982 which was well within the knowledge of the plaintiffs-respondents, the lower appellate court was not justified in reversing the order of the trial court.

6. Learned counsel further submitted that Rampyari in the year 2015 had executed a Will which till date has remained unchallenged and the copy of the Khatauni filed by plaintiffs before the court below clearly establishes the fact that they were aware of the names recorded in the revenue records of the defendants and thus by simply alleging that the plaintiffs acquired knowledge in the year 2017 would not make the suit maintainable. According to him, the litigation is vexatious and liable to be rejected under Order 7 Rule 11 C.P.C. He has relied upon Article 59 of Schedule 1 of the Limitation Act wherein the period prescribed is 3 years from the date of knowledge and once the plaintiffs were aware of the name of Rampyari having been recorded in the revenue records, the said period having expired, the suit was barred by limitation.

7. Reliance has been placed upon a decision of Apex Court in case of Raghwendra Sharan Singh vs. Ram Prasanna Singh (dead) by legal representatives, (2020) 16 SCC 601. Relevant para 7 is extracted hereasunder:-

"7. Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7 Rule 11 CPC to the facts of 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 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 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 10. It appears that the summon of the suit filed by the defendant being TS (Partition) Suit No. 203 of 2001 was served upon Defendant 10-plaintiff 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 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 T. Arivandandam [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467] 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 CPC."

8. Reliance has also been placed upon a decision of Apex Court in case of Padhiyar Prahladji Chenaji (deceased) through L.R.s vs. Maniben Jagmalbhai (deceased) through L.R.s and ors., Civil Appeal No. 1382 of 2022, decided on 03.03.2022. Relevant para 8.1 is extracted hereasunder:-

"8.1 In the case of Dilboo Vs. Dhanraji, (2000) 7 SCC 702, it is observed and held by this Court that where there is a dispute that the suit is filed beyond the period of limitation, the plaintiff would have to aver and prove that the suit is within the period of limitation as prescribed and in the absence of any averment or proof to show that the suit is within time, it is the plaintiff who would fail. It is further observed that whenever a document is registered the date of registration becomes the date of deemed knowledge. It is further observed that in other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge."

9. Sri Nipun Singh, learned counsel appearing for the respondents submitted that the question of limitation is a mixed question of law and fact. According to him, the plaint allegation can only be considered while dealing with application under Order 7 Rule 11(d) C.P.C. In the present case, the plaintiffs have come up with a specific case that for the first time they came to know about the Will executed in the year 1982 by Dalu in favour of Rampyari on 11.12.2017 and 27.05.2018 and, thereafter, the suit for cancellation of Will was filed. Moreover, the period prescribed for filing the suit from the date of knowledge is three years and thus the present suit was filed within the period of limitation. He then contended that the trial court did not confine itself only to the plaint, but it took external aid of the revenue entries which were filed for rejecting the plaint under Order 7 Rule 11(d) of C.P.C.

10. According to respondents counsel, it is only after framing of issues under Order 14 Rule 2 that the court below could have proceeded to examine the point of limitation after affording parties to lead their evidences as it is a mixed question of law and fact.

11. Reliance has been placed upon decisions of Apex Court in cases of Mongia Realty and Buildwell Private Ltd. vs. Manik Sethi, (2022) SCC Online 156; Salim D. Agboatwala and others vs. Shamaji Oddhavji Thakkar and others, (2021) SCC Online 735; P.V. Guru Raj Reddy and another vs. P. Neeradha Reddy and others, (2015) 8 SCC 331; Satti Paradesi Samadhi and Pillayar Temple vs. M. Sankuntala (dead) through Legal Representatives and others, (2015) 5 SCC 674; Vaish Aggarwal Panchayat vs. Inder Kumar and others, (2020) 12 SCC 809 and Ramesh B. Desai and others vs. Bipin Vadilal Mehta and others, (2006) 5 SCC 638.

12. I have heard respective counsels and perused the material on record.

13. Before adverting to decide the issue raised before this Court, a cursory glance of Order 7 Rule 11 is necessary for the better appreciation of this case. Order 7 Rule 11 C.P.C. is extracted hereasunder:-

"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, but the plaint is returned 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, 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 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 from 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 grave injustice to the plaintiff."

14. From the reading of above provision, it is clear that in order to consider an application under Order 7 Rule 11 C.P.C., the court has to scrutinise the averments/pleas in the plaint. At this stage, the plea taken by the defendants in the written statement are wholly irrelevant and the application is to be decided only on the plaint averments. It is for the court to see that if the allegations have been vexatious and meritless and not disclosing a clear right to sue, then it is the duty of the trial judge to exercise power under Order 7 Rule 11 but if the drafting creates any illusion of cause of action then on the first hearing, the court after examining can proceed to decide the application and can reject the plaint. The Apex Court in case of The Church of Christ Charitable Trust & Educational Charitable Society vs. M/s Ponniamman Educational Trust, (2012) 8 SCC 706 was of the said opinion.

15. The power of trial court under Order 7 Rule 11 C.P.C. can be exercised at any stage i.e. before registering the plaint or issuing summons to defendants at any time before conclusion of the trial. This power can be exercised both at the threshold of the proceedings, and in the absence of the statutory restrictions, at any stage of subsequent proceedings.

16. The plaint cannot be rejected simplicitor on the basis of allegations made by defendant in his written statement or in an application for rejection of the plaint. It is the duty of the trial court to go through the entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the court exercising the power under Order 7 Rule 11 C.P.C. In P. V. Guru Raj Reddy and another (supra), the Apex Court while dealing with Order 7 Rule 11 C.P.C. held that rejection of plaint is a drastic power conferred in the court to terminate the civil action at the threshold. The conditions precedent to exercise power under the said provision are stringent and have been consistently held to be so by the court. Relevant paras 5 and 6 are extracted hereasunder:-

"5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.

6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie disclose that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order 7 Rule 11 the stand of the defendants in the written statement would be altogether irrelevant."

17. In somewhat similar situation, the Apex Court in case of Chotanben vs Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422, held that plea regarding the date on which the plaintiffs gained knowledge of the essential fact, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold. In Ramesh B. Desai and others (supra), the Hon'ble Supreme Court while dealing with issue of limitation held that a plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact.

18. In Vaish Aggarwal Panchayat (supra), the Apex Court again had the occasion to consider that whether rejection of plaint under Order 7 Rule 11(d) can be done on the ground that suit was barred by limitation. Relevant paras 14, 15 and 16 are extracted hereasunder:-

"14. In this regard a reference to a three-Judge Bench decision [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2020) 12 SCC 819] in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] and others would be fruitful. Be it noted the said case was referred to a larger Bench vide Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 662] . The order of reference (sic) [Ed.: The final order which the 2-Judge Bench delivered after the 3-Judge Bench declined to answer the reference.] reads as follows: (Hanuman Seva Trust case [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] , SCC pp. 660-61, paras 4-5)

"4. This case was argued at length on 30-8-2005. The counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma [N.V. Srinivasa Murthy v. Mariyamma, (2005) 5 SCC 548] for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, the counsel for the respondents relied upon a later judgment of this Court in Popat & Kotecha Property v. SBI Staff Assn. [Popat & Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] in respect of the proposition that Order 7 Rule 11(d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would include the suit being "barred by limitation" was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman [Mohan Lal Sukhadia University v. Priya Soloman, 1999 SCC OnLine Raj 2 : AIR 1999 Raj 102] , Khaja Quthubullah v. State of A.P. [Khaja Quthubullah v. State of A.P., 1994 SCC OnLine AP 130 : AIR 1995 AP 43] , Vedapalli Suryanarayana v. Poosarla Appalanarasimhulu [Vedapalli Suryanarayana v. Poosarla Appalanarasimhulu, 1979 SCC OnLine AP 64 : (1980) 1 An LT 488] and Arjan Singh v. Union of India [Arjan Singh v. Union of India, 1986 SCC OnLine Del 110 : AIR 1987 Del 165] wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd. [Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., 1984 SCC OnLine Cal 165 : AIR 1985 Cal 193] , National Insurance Co. Ltd. v. Navrom Constantza [National Insurance Co. Ltd. v. Navrom Constantza, 1987 SCC OnLine Cal 132 : AIR 1988 Cal 155] , J. Patel & Co. v. National Federation of Industrial Cooperatives Ltd. [J. Patel & Co. v. National Federation of Industrial Cooperatives Ltd., 1995 SCC OnLine Cal 268 : AIR 1996 Cal 253] and SBI Staff Assn. v. Popal & Kotech Property [SBI Staff Assn. v. Popal & Kotech Property, 2000 SCC OnLine Cal 132] . The last judgment was the subject-matter of challenge in Popat & Kotecha Property v. SBI Staff Assn. [Popat & Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] This Court set aside the judgment and held in para 25 as under: (SCC p. 517)

''25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case.'

5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma [N.V. Srinivasa Murthy v. Mariyamma, (2005) 5 SCC 548] and Popat & Kotecha Property v. SBI Staff Assn. [Popat & Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510] the Bench referred the following question of law for consideration to a larger Bench:

''Whether the words "barred by law" under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation.'"

15. The three-Judge Bench opined [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2020) 12 SCC 819] that there was no conflict of opinion and thereafter the matter came back to the Division Bench for adjudication. The Division Bench reproduced [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] what has been stated by the three-Judge Bench. It is as under: (Hanuman Seva Trust case [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] , SCC p. 661, para 6)

"6. Before the three-Judge Bench, counsel for both the parties stated as follows:

''... It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case.'"

16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex facie reading of the plaint it could not be held that the suit was barred by time."

19. In the present case, the plaint in para no. 6 discloses about the Will dated 28.01.1982, while para no. 15, it discloses the cause of action which arose on 11.12.2017 and 27.05.2018 when plaintiffs came to know about the said fact and defendants refused from getting the Will cancelled and tried to take forcible possession over the land in dispute.

20. Thus, from the reading of the plaint, it is clear that plaint clearly discloses cause of action and the suit does not appear to be barred by law of limitation as it is a mixed question of law and fact and only after framing of issues on point of limitation and documentary evidence, that question of limitation can be decided and plaint cannot be thrown out at the threshold.

21. It is well settled that question of limitation is a mixed question of law and fact and, where the plaint discloses the cause of action it is only after framing of issues and parties after leading their evidence, the issue in regard to suit being barred by limitation can be decided. The reliance placed by appellants counsel upon the decision in case of Raghwendra Sharan Singh (supra) is distinguishable from the present case, and thus, no benefit can be passed on to the appellants relying upon the said decision.

22. The lower appellate court had rightly set aside the order passed by the trial court, which had travelled beyond the scope of Order 7 Rule 11(d) C.P.C. by taking into account the revenue records while considering the application under Order 7 Rule 11(d) C.P.C. and dismissing the suit of the plaintiff at the threshold.

23. The scope of Order 7 Rule 11 is limited to the extent that in case the trial judge arrives at a finding after scrutinising the averment/plea in the plaint that the allegations are vexatious and meritless and no clear material right to sue arises, he can at the threshold dismiss the suit of the plaintiff but the plaint cannot be thrown out at the threshold taking into consideration the external aid such as revenue records, which the trial court in the present case had done and recorded finding that plaintiffs had the knowledge of the execution of Will as the entries stood in the name of defendants.

24. The lower appellate court rightly found that trial court had exceeded its jurisdiction by travelling beyond the scope of Order 7 Rule 11(d) C.P.C., by taking into consideration the evidence which was on record and was beyond the scope of Order 7 Rule 11(d).

25. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :

"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."

26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."

26. Considering the facts and circumstances of the case, this Court finds that no interference is required in the judgment and order passed by lower appellate court. No substantial question of law arises to be adjudicated herein.

27. The second appeal fails and is hereby dismissed.

Order Date :- 22.7.2022

V.S.Singh