Chattisgarh High Court

Parmanand Nihalani vs Ganesh Sachdev on 3 November, 2022

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                                                                  NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                      Civil Revision No.44 of 2020

                  Judgment Reserved on 20/09/2022

                  Judgment Delivered on 03/11/2022

     1. Parmanand Nihalani, aged about 79 years, S/o Shri Basamal
        Nihalani, R/o Brahamanpara Ward, Dhamtari, Tehsil and District
        Dhamtari, Chhattisgarh.
     2. Smt. Bharati Daultani, aged about 43 years, W/o Shri Mahesh
        Kumar Daultani, D/o Shri Parmanand Nihalani, R/o near Torwa
        Naka, Bilaspur, Tehsil and District Bilaspur, Chhattisgarh.

                                                         ---- Applicants

                                    Versus

       Ganesh Sachdev, aged about 54 years, S/o Shri Sudamamal
       Sachdev, R/o Risaipara, Aamapara Ward, Dhamtari, Tehsil and
       District Dhamtari, Chhattisgarh.

                                                        ---- Respondent



For Applicants              :           Mr.Ankur Agrawal, Advocate.
For Respondent              :           Mr.Manoj Paranjpe and Mr.
                                        Siddharth Tiwari, Advocates.



               Hon'ble Shri Justice Arvind Singh Chandel

                             CAV Judgment



1.    This revision has been preferred by the Applicants/Defendants

      against the impugned order dated 05.03.2020 (Annexure P-1)

      passed by learned Additional District Judge (F.T.C.), Dhamtari, in

      Civil Suit No.7-A/2019, whereby the learned ADJ dismissed the

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


2.   Facts

of the case are that Respondent/Plaintiff filed a suit for

declaration, possession and permanent injunction. It was pleaded

by the Plaintiff that he was the owner of land situated at Risaipara,

District Dhamtari(C.G.), Plot No.165/10, admeasuring area 135

Square Meter. The above mentioned land was sold to Defendant

No.1 through registered sale deed dated 20.05.2016. Defendant

No.2 is daughter of Defendant No.1. On 27.07.2017, Defendant

No.1 executed a gift deed in favour of Defendant No.2 for the suit

land. It was further pleaded by the Plaintiff that he never gave real

possession of the suit land to Defendant No.1 and also did not

receive any sale consideration with relation to the sale of said suit

property, therefore, Defendant No.1 have no right over the suit

property and any gift deed executed by Defendant No.1 in favour of

Defendant No.2 is null and void. It was further pleaded by the

Plaintiff that Defendant No.1 for sale consideration gave a cheque

amounting to Rs.9,99,000/- to the Plaintiff and at that time

Defendant No.1 requested the Plaintiff to present the cheque after

two months and when he went to Defendant's No.1 Bank, it was

orally informed by the bank that no fund is available in the account

of Defendant No.1. Thereafter, when the Plaintiff presented the

cheque into his account, the Bank denied accepting the cheque, as

the limitation to present the cheque has already expired. Thereafter,

the Plaintiff asked Defendant No.1 to give a fresh cheque then it

was told by Defendant No.1 that he will provide him the sale

consideration amount in cash. But, Defendant No.1 failed to pay

the consideration amount till 27.06.2019, therefore, the suit was

filed by the Plaintiff.

3. After issuing summons, Defendants/Applicants appeared before the

Trial Court and filed an application under Order VII Rule 11 of the

Civil Procedure Code, 1908, on the ground that the suit was

preferred by the Plaintiff is time barred suit and the Plaintiff has

not valued the suit properly.

4. After hearing both the parties, vide impugned order dated

05.03.2020, Trial Court has rejected the aforementioned

application. Hence, this Civil Revision.

5. I have heard the Counsel appearing for the parties, perused the

impugned order and other documents annexed with the case.

6. Dealing with the issue in case of Kuldeep Singh Pathania V.

Bikram Singh Jaryal (2017) 5 Supreme Court Cases 345, the

Supreme Court held as under:-

9. Thus, for an enquiry under Order VII Rule 11

(a), only the pleadings of the Plaintiff-Petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order XIV Rule 2(2). But the entire pleadings on both sides can be looked into under Order XIV Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.

10. In the present case, the issue relates to an enquiry under Order VII Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order XIV Rule 2(2) of the Code. The court exercised its jurisdiction only

Under Section 83(1) (a) of the Act read with Order VII Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the Plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order VII Rule 11(a) of the Code or any other pleadings of the Respondents can be considered for that purpose.

11. In Mayar (H.K.) Ltd. and Ors. v. Owners & Parties, Vessel M.V. Fortune Express and Ors. MANU/SC/8083/2006 : (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, paragraph-12 reads as follows: (SCC p.

115)

"12.From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the Defendant in his written statement or in an application for rejection of the plaint. The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the Plaintiff may not succeed cannot be a ground for rejection of the plaint.

7. In the case of Salim D. Agboatwala V. Shamalji Oddhavji

Thakkar 2021 SCC OnLine SC 798, the Supreme Court held as

under:-

10. Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to

emphasis that limitation is a mixed question of fact and law. It is the case of the Appellants/Plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent and null and void. The Appellants/Plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.

8. In the case of Saranpal Kaur Anand V. Praduman Singh

Chandhok 2022 SCC Online SC 379, The Supreme Court held as

under:-

The issue of limitation has not been considered to be a pure question of law to be decided as a preliminary issue Under Order XIV Rule 2 of Code of Civil Procedure, by three Judge Bench of this Court in case of Nusli Neville Wadia v. Ivory Properties MANU/SC/1376/2019 : (2020) 6 SCC 557. In the said case, a reference was made to the three Judge Bench with respect to the interpretation of the provisions contained in Section 9A of Code of Civil Procedure as inserted by the Maharashtra Amendment Act, 1977 and the court held that the provisions contained in Section 3 read with Sections 4 to 24 of the Limitation Act, 1963 do not provide that the court has no jurisdiction to deal with the matter. It has been further held that so long as the court has the jurisdiction to try the suit, it cannot proceed to dismiss it on the ground of limitation Under Section 3, and that unless the question is a pure question of law, it cannot be decided as a preliminary issue Under Order XIV Rule 2. The Bench further opined that mixed question of law and fact cannot be decided as a preliminary issue Under Order XIV Rule

2. The court elaborately dealt with the provisions contained in Order XIV Rule 2(2) in the light of the Limitation Act and observed as under:-

51.----As per Order XIV Rule 1, issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The issues are framed on the material proposition, denied by another party. There are issues of facts and issues of law. In case specific facts are admitted, and if the question of law arises which is

dependent upon the outcome of admitted facts, it is open to the Court to pronounce the judgment based on admitted facts and the preliminary question of law under the provisions of Order XIV Rule 2. In Order XIV Rule 2(1), the Court may decide the case on a preliminary issue. It has to pronounce the judgment on all issues. Order XIV Rule 2(2) makes a departure and Court may decide the question of law as to jurisdiction of the Court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

52. In a case question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue Under Order XIV Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made Under Order XIV Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of jurisdiction also depends upon the proof of facts which are disputed. It cannot be decided as a preliminary issue if the facts are disputed and the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of Code of Civil Procedure and post amendment in the year 1976.

9. As observed by the Supreme Court hereinabove, at this stage, the

only pleadings of the plaint can be looked into. According to the

pleadings of the plaint, the suit was filed by the Plaintiff inter-alia

on the ground that the consideration amount of the sale deed was

not paid to the Plaintiff though the cheque was given to the Plaintiff

and when it was produced before the Bank, it was not in cashed

due to insufficient fund in the account of Defendant No.1. It was

further pleaded that when the cheque was again submitted before

the Bank, it was orally informed that the limitation of the said

cheque has already been expired. According to the pleadings, when

the Plaintiff contacted Defendant No.1, he told him that he will pay

the consideration amount in cash but, he also failed to do so. Thus,