Dipali Himmat Meherwal And ... vs Shaikh Nazir Mohammad Nasir And ...
2018 Latest Caselaw 49 Bom

                                    (1)                   11 CRA 244 of 2017



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


             CIVIL REVISION APPLICATION NO.244 OF 2017


1)    Sau.Dipali Himmat Meherwal
      Age: 40 years, Occu.: Agricultural 
      & Business.

2)    Himmat Kalyanlal Meherwal
      Age: 42 years, Occu.: Agricultural
      & Business

      Both R/o.Gulmohar Road,
      Ahmednagar, Tal. & Dist.Ahmednagar.     ..Applicants

                       Versus

1)    Shaikh Nazir Mohammad Nasir
      Age: 47 years, Occu.: Agriculture
      and Business.

2)    Shaikh Anwar Mohammad Nasir
      Age: 40 years, Occu.: Agri.

      Both R/o.Gulmohar Road,
      Ahmednagar, Tal. & Dist.Ahmednagar.

3)    Gulam Hussain Alabaksh
      Age: 42 years, Occu.: Business,
      R/o.GPO Road, Ahmednagar.

4)    Sau.Ameena Haji Mirza
      Age: 38 years, Occu.: Household
      and Agriculture.




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                                      (2)                     11 CRA 244 of 2017



       Mukund Nagar, Ahmednagar.

5)     Shaikh Iliyas Mubarak
       Age: 41 years, Occu.: Business,
       R/o.Abhilasha Colony,
       In front of Mothi Mariyam Masjid,
       Mukundnagar, Ahmednagar.

6)     Gaiakwad David Shamrao
       Age: 70 years, Occu.: Agriculture
       and Business,
       R/o.Loyed Colony, Savedi Road,
       Ahmednagar.                                    ..Respondents

                               ...
          Advocate for Applicants : Mr.A.P.Bhandari   
     Advocate for Respondent Nos.1 to 4 : Mr.S.G.Jadhavar 
                               ...

                                     CORAM :  M.S.SONAK, J.

DATE : 4th JANUARY 2018

ORAL JUDGMENT:-

1) Heard Mr.A.P.Bhandari for the applicants and

Mr.S.G.Jadhavar for respondent Nos.1 to 4.

2) The revision application challenges order dated

23.11.2017 made by the Second Joint Civil Judge, Senior

Division, Ahmednagar (Trial Court), rejecting their

application under Order VII Rule 11 of the Code of Civil

(3) 11 CRA 244 of 2017

Procedure, seeking rejection of the plaint in Special

Civil Suit No.46 of 2015.

3) Mr.Bhandari, learned counsel for the applicants

submits that upon a meaningful reading of the plaint, it

is quite clear that the suit is barred under the

provisions of Section 47 of the Code of Civil Procedure

as well as the provisions under Order XXIII Rule 3 of the

the Code of Civil Procedure. He submits that, there is no

dispute that there was a decree obtained which was put

into execution. At the stage of execution, the applicants

objected by invoking the provisions under Order XXIII

Rule 3 of the Code of Civil Procedure. The objections

were initially dismissed, however, on appeal, the matter

was remanded to the Executing Court with a direction for

reconsideration. At that stage, the applicants purchased

the shares from Shakuntalabai Patole and consequently,

stepped into the shoes of Shakuntalabai. It is in this

execution proceedings that, consent terms were agreed and

(4) 11 CRA 244 of 2017

execution proceedings were disposed of. On the said

basis, Mr. Bhandari points out that respondent Nos.1 to 4

were parties to the consent terms. On the basis of such

consent terms, and order made thereon, the decree has

been further executed by the Collector under the

provisions of Maharashtra Land Revenue Code. Mr.Bhandari

submits that issues raised in the plaint are nothing but

issues which arise in the course of execution of decree

and therefore, in terms of Section 47 of the Code of

Civil Procedure, there is no question of maintaining a

separate Suit for the said purpose. Mr.Bhandari also

points out that the Suit of this nature, which seeks to

question the consent decree, would not be maintainable in

terms of Order XXIII Rule 3 of the Code of Civil

Procedure.

4) Mr. Bhandari points out that there are other

objections to the maintainability of the Suit as well. He

submits that the Suit is barred by principles analogues

(5) 11 CRA 244 of 2017

to res judicata. He points out that the suit is barred by

the law of jurisdiction. He also points out that the Suit

in fact, questions the order made by the Collector,

exercising the powers under the Maharashtra Land Revenue

Code. He submits that, no Suit would be maintainable to

question the exercise of powers under the Maharashtra

Lands Revenue Code, since alternate and efficacious

remedies are provided under the Code itself. Mr. Bhandari

submits that the provisions of such alternate and

efficacious remedy constitutes an implied bar to the

jurisdiction by the Civil Court.

5) Mr. Bhandari in support of the aforesaid contentions

relied on the decisions in the following cases:-

(a) Tulsan Vs. Pyarelal and Ors. [(2006) 10 SCC 782].

(b) Chandrika Misir & Another Vs. Bhaiyalal [(1973) 2 SCC 474].

(c) Paygonda Survgonda Patil and others Vs. Jingonda

(6) 11 CRA 244 of 2017

Surgonda Patil and others [AIR 1968 Bombay 198].

(d) Popat Jaysingh Rajpure Vs. State of Maharashtra [2012 (5) Mh.L.J. 884].

(e) T. Arivandandam Vs. T.V. Satyapal and another [AIR 1277 SC 2421].

(f) P.R.Sukeshwala and another Vs. Dr.Dewadatta V.S. Kerkar and another [AIR 1995 Bombay 227].

6) In addition, Mr.Bhandari also placed reliance on

Satyananda Sahoo Vs. Ratikanta Panda [AIR 1997 Orissa

867], in support of the plea of res judicata.

7) Mr. S.G.Jadhavar, the learned counsel for the

respondent Nos.1 to 4 points out that, plaint can be

rejected under Order VII Rule 11 of the Code of Civil

Procedure, only on the basis of a statement in the plaint

and not by reference to the defence of the defendants. He

submits that, upon a meaningful but entire reading of the

plaint, it is quite clear that the same not only

(7) 11 CRA 244 of 2017

discloses cause of action but further, plaint cannot be

said to be barred by any provisions of law. Mr.Jadhavar

submits that issue of limitation at the highest is the

mixed issue of law and facts. He submits that the issue

of res judicata is also a defence which cannot be

considered at the stage of deciding an application under

order VII Rule 11 of the Code of Civil Procedure.

Mr.Jadhavar points out that in this case, the plaintiff

has committed alleged fraud and accordingly, there can be

no bar to maintain the Suit as instituted.

8) For all these reasons, Mr.Jadhavar submits that this

revision application may not be entertained.

9) Rival contentions now fall for determination.

10) There is no serious dispute about the scope of the

provisions of Order VII Rule 11 of the Code of Civil

Procedure. At this stage, the Court is required to only

focus upon the plaint and averments in the plaint. (See:

(8) 11 CRA 244 of 2017

Saleem Bhai Vs. State of Maharashtra, [(2003) 1 SCC 557].

In a given case, some admitted documents may be looked

into, however, that is really not the question in the

present case. One thing is clear that in deciding

application under Order VII Rule 11 of the Code of Civil

Procedure, the defence in the written statement is alien.

Such defence is not required to be considered at this

stage. Therefore, it is for the defendants to make out a

case that plaint is required to be rejected for either

failure to disclose any cause of action or that Suit

appears from the statement to be barred by any law.

There are certain other grounds as well, however, in the

facts and circumstances of the present case, we are

really not concerned with the same.

11) Upon a meaningful reading of the plaint in its

entirety, it is difficult to accept the contention that

the Suit appears, from the statement in the plaint, to be

barred by any law. All that can be stated at this stage

(9) 11 CRA 244 of 2017

is that the issue of limitation or res judicata raised by

the applicants may be arguable defences. However, this

is far from concluding that the Suit, on the basis of

statement in the plaint, is found to be barred by law.

12) The Trial Judge, upon examination of the plaint, has

rightly held that the issue of limitation in this case,

at the highest, is a mixed issue of law and facts. No

doubt, the issue of limitation has to be taken up for

consideration by the Court, whether the same is raised as

defence or not. However, the question is whether in the

facts of the present case, and that too, on the basis of

some statement in the plaint, it can be said that the

Suit is barred by limitation. The answer at this stage,

will have to be in the negative. Evidence will be

necessary for determination of the issue of limitation in

the facts and circumstances of this case.

13) Res judicata or the defence analogous to res

( 10 ) 11 CRA 244 of 2017

judicata is a classic defence to the maintainability of

the Suit. No doubt, the applicants will be entitled to

raise such defence. However, this begs the questions as

to whether such a defence is required to be considered at

the stage of consideration of an application under Order

VII Rule 11 of the Code of Civil Procedure. There are

several decisions, which prescribe manner in which the

defence of res judicata is required to be raised in the

written statement and thereafter, the manner in which

such defence is required to be proved. All this cannot

be gone into at the stage of considering the application

under Order VII Rule 11 of the Code of Civil Procedure.

14) In this case, the plaintiffs have made allegations

of fraud in the matter of execution of the consent terms.

The issue, as to whether the proceedings between the

parties were disposed off on the basis of consent decree

or not, is also a debatable one. Admittedly, in the

original proceedings in the Suit and the decree made

( 11 ) 11 CRA 244 of 2017

therein, respondents nos.1 to 4 were not even parties.

Respondents No.1 to 4 were impleaded as parties at the

stage of execution of the decree in the original Suit.

This is not to suggest that there is any bar to such

inclusion. However, the issue, as to whether the consent

terms filed in the course of execution proceedings and/or

made therein can be recorded as consent decree or not, is

itself a debatable or arguable issue. Again, it will not

be appropriate to decide such issue at the stage of

consideration of application under Order VII Rule 11 of

the Code of Civil Procedure.

15) At this stage, it is too premature to say whether

the allegations of fraud are well founded. However, upon

reading of the plaint, it cannot be denied that such

allegations are made. Fraud is said to vitiate even the

most solemn of proceedings.

16) The challenge in the plaint is not merely to the

( 12 ) 11 CRA 244 of 2017

exercise of powers of the Collector under the provisions

of Maharashtra Land Revenue Code, the challenge is

basically to the alleged act of deprivation of

appropriate share, which respondents no.1 to 4 claim to

have acquired from Mrs.Shakuntalabai Patole. The learned

Counsel for respondents no.1 to 4 states that respondents

no.1 to 4 have not even been allotted the share, which

was purchased by them and entitled to get in terms of the

decree. This contention is no doubt seriously disputed by

the learned Counsel for the applicants. But again, this

is not the stage to go into such disputed issues.

17) It is not possible to dissect claim in the basic

plaint and on the said basis to reject it by applying

provisions under Order VII Rule 11 of the Code of Civil

Procedure. The decision in the case of Tulson (supra),

no doubt deals with the principle of res judicata or the

principle analogous thereto. The decision also relates

to interpretation or Order XXIII Rule 3 of the Code of

( 13 ) 11 CRA 244 of 2017

Civil Procedure. However, the decision does not involve

exercise of powers at the stage of deciding application

under Order VII Rule 11 of the Code of Civil Procedure.

18) The decision in Paygnda Survgonda Patil (supra) is

also distinguishable, considering the main challenge in

the plaint in the present case. Rest of the decisions

also turn on their own facts and in any case do not lay

down any principles contrary to what have now been

applied for considering applicants' case for rejection of

plaint under Order VII Rule 11 of the Code of Civil

Procedure.

19) There may be some merit in the submission of

Mr.Bhandari that the impugned order has not considered

all the objections raised by the applicants in their

application seeking rejection of the plaint. It is

specifically for this reason that Mr.Bhandari was

prompted to urge all such objections at this stage

( 14 ) 11 CRA 244 of 2017

itself. However, even upon consideration of all such

objections, there is no case, may be, for exercising

powers under Order VII Rule 11 of the Code of Civil

Procedure.

20) In Roop Lal Sathi Vs. Nachhattar Singh Gill, [(1982)

3 SCC 487], the Hon'ble Supreme Court has held that under

Order VII Rule 11 (a) of the Civil Procedure Code, only a

part of the plaint cannot be rejected. In D.

Ramachandran Vs. R.V.Janakiraman & others, [(1993) 3 SCC

267], the Hon'ble Supreme Court has held that a plaint

cannot be rejected partially by dissecting the pleadings

in several parts and holding that one of them does not

disclose cause of action. In Balsaria Construction (P)

Ltd. Vs. Hanuman Seva Trust and Ors., [(2006) 5 SCC 658],

the Hon'ble Supreme Court has held that the plaint cannot

be rejected as barred by limitation without proper

pleadings, framing of an issue of limitation and taking

of evidence particularly when limitation is a mixed

( 15 ) 11 CRA 244 of 2017

question of law and fact and on ex facie reading of the

plaint, it is not clear that the suit is barred by

limitation.

21) In Popat and Kotecha Property Vs. State Bank of

India Staff Association [(2005) 7 SCC 510], the Supreme

Court has held that under Order VII Rule 11(d) of the

Civil Procedure Code, plaint cannot be rejected if it

appears to be barred by any law from the statement in the

plaint. Disputed questions cannot be decided at the time

of considering application under Order VII Rule 11 of the

Code of Civil Procedure. This provision 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.

22) In Popat (supra), the Supreme Court has held that

there cannot be any compartmentalisation, dissection,

segregation and inversions of the language of various

( 16 ) 11 CRA 244 of 2017

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. The real object of Order VII

Rule 11 of the Code is to keep out of courts

irresponsible law suits. Therefore, Order X 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

( 17 ) 11 CRA 244 of 2017

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 VII Rule 11 of the Code can be exercised.

23) Applying the aforesaid principles to the facts and

circumstances of the present case, there is no reason to

interfere with the conclusion recorded in the impugned

order. Accordingly, this Revision Application is liable

to be dismissed.

24) However, it is clarified that the observations in

the impugned order or for that matter, observations made

in this order are limited for determining whether plaint

deserves rejection under Order VII Rule 11 of the Code of

Civil Procedure. Therefore, such observations, may not

be taken into consideration at the stage of deciding the

Suit finally. It is also further clarified that the

objections relating to the maintainability of the Suit or

( 18 ) 11 CRA 244 of 2017

otherwise are specifically kept open and the Trial Court

shall consider the same in accordance with law and on its

own merits while disposing of the Suit on merits.

25) With the aforesaid observations, the Civil Revision

Application is dismissed. There shall be no order as to

costs.

[M.S.SONAK, J.] SPT/11 CRA 244 of 2017