Asha Kumari vs Asha Kumari And Others
2022 Latest Caselaw 8700 HP

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 14th DAY OF OCTOBER, 2022

                           BEFORE




                                                          .

           HON'BLE MR. JUSTICE AJAY MOHAN GOEL

                 CIVIL MISC. PETITION MAIN (ORIGINAL) No. 322





                 of 2022

     Between:-
1.   ASHA KUMARI, WIFE OF SH.
     HANS RAJ, AGE 55 YEARS.

2.


3.
     SANGITA DEVI, D/O SH. HANS
     RAJ, AGE 33 YEARS.

     DEEPAK KUMAR, S/O SH.


     HANS RAJ, AGE 28 YEARS.

     ALL R/O VILLAGE DAMEHRA,
     PARGNA AJMERPUR, SUB
     TEHSIL   BHARARI,  DISTT.


     BILASPUR, H.P.

                                               ...PETITIONERS




     (BY SHRI AMAN         PARTH    SHARMA,
     ADVOCATE)





     AND

1.   RATTAN LAL, S/O SH. SHRI





     RAM, RESIDENT OF VILLAGE
     DAMEHRA,            PARGNA
     AJMERPUR,     SUB    TEHSIL
     BHARARI, DISTRICT BILASPUR,
     H.P.

                                              ...RESPONDENT
2.   RAM LAL, S/O SH. DHANI RAM,
     R/O    VILLAGE    DAMEHRA,
     PARGNA     AJMERPUR,    SUB
     TEHSIL    BHARARI,   DISTT.
     BILASPUR, H.P.




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3.    AMAR SINGH, S/O SH. VILLAGE
      DAMEHRA,            PARGNA
      AJMERPUR,    SUB     TEHSIL
      BHARARI, DISTT. BILASPUR,




                                                                          .
      H.P.





                             ...PROFORMA RESPONDENTS
      (SHRI VIJAY SINGH BHATIA, ADVOCATE,





      FOR R-1.
      NONE FOR R-2.
      SHRI VIJAY KUMAR VERMA, ADVOCATE,
      FOR R-3)
      Whether approved for reporting? Yes.





__________________________________________________________
             This petition coming on for orders this day, the Court passed the following:-


                                    ORDER

By way of this petition filed under Article 227 of the Constitution

of India, the petitioners have laid challenge to order dated 25.03.2022,

passed by the Court of learned Civil Judge, Court No. 3, Ghumarwin,

District Bilaspur, H.P., passed in CMA No. 493-6/2021-18, filed in Civil Suit

No. 184-7/21-12, titled as Rattan Lal Vs. Asha Kumari and others, whereby,

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

by the present petitioners has been dismissed.

2. Brief facts necessary for the adjudication of the present petition

are as under:-

Respondent No. 1 herein, namely, Rattan Lal has filed a suit

claiming that he is exclusive owner in possession of the suit land described

in the head note of the suit. According to the plaintiff, he and his brother late

Sh. Hans Raj inherited the suit land from their father Sh. Shri Ram by virtue

of a Will, as the suit property was self acquired property of their late father.

Late Sh. Hans Raj relinquished half of his share in the suit property in favour

.

of the plaintiff by virtue of a Relinquishment Deed on 16.03.1989.

Defendants No. 1 to 3 filed a suit for declaration and injunction in the Court,

i.e., Civil Suit No. 511/1 of 1994 on false and concocted facts and obtained

a decree from the Court on 09.06.2003, which decree as per the plaintiff,

was a result of fraud and thus not binding upon him. It is further the case of

the plaintiff in the suit that defendants No. 1 to 3 on the basis of said wrong

and illegal entries in the revenue record alienated part of the suit land vide

sale dated 25.07.2012 in favour of defendant No. 4, qua which mutation

was subsequently entered in favour of defendant No. 4 on 27.07.2012.

Further as per the plaintiff, defendants No. 1 to 3 also allotted the suit land

by virtue of exchange only in favour of defendant No. 5, which transaction

according to the plaintiff is illegal and in violation of the provisions of the

Transfer of Property Act. This is the background, in which, the suit has been

filed praying for the reliefs as stand mentioned in the plaint, which, in brief,

are that a decree be passed to the effect that the plaintiff is owner in

possession of the suit land and that the suit land was self acquired property

of late father of the plaintiff which devolved upon the plaintiff and his late

brother in terms of a Will executed by their late father and that the judgment

and decree dated 09.06.2003, passed in Civil Suit No. 511/1 of 1994 in case

titled as Asha Kumari Vs. Hans Raj was illegal, wrong, null and void being

a result of fraud. Further relief sought in the plaint is that sale deed dated

25.07.2012 and mutation entered as a result thereof be declared illegal,

wrong, null and void and the oral exchange dated 20.08.2012 in favour of

.

defendant No. 5 by defendants No. 1 to 3 be also declared as illegal, wrong,

null and void and further a decree for permanent prohibitory injunction

restraining the defendants from interfering with the suit land or from

dispossessing the plaintiff from the suit land be passed.

3. The Civil Suit has been filed in the month of October, 2012. It

is in this Civil Suit that in the month of November, 2018, an application was

filed under Order VII, Rule 11 of the Code of Civil Procedure by the

petitioners herein praying for rejection of plaint on the ground that the suit

was barred in law, as it was repeated litigation, because subject matter

thereof already stood adjudicated by the competent Civil Court. As per the

averments made in the application, the issue which stood raised by the

plaintiff, already stood adjudicated by the Court of learned Sub-Judge First

Class, Ghumarwin in Civil Suit No. 511/1 of 1994 and, therefore, the suit

was barred by the principle of res judicata. It was also mentioned in the

application that son of the plaintiff, namely, Tilak Raj had filed another suit

on similar facts, which was being adjudicated before the Court of learned

Civil Judge (Junior Division), Court No. 2, Ghumarwin, i.e., Civil Suit No.

192/1 of 2013. On these grounds, rejection of the plaint was sought.

4. The application was resisted by the non-applicant/plaintiff. In

terms of the impugned order dated 25.03.2022, this application has been

dismissed by the learned Trial Court. The reasons assigned by the learned

Court below while dismissing the application, inter alia, are that in the Civil

Suit, the issues were framed on 09.01.2015 and thereafter, one PW was

.

also examined on 26.11.2018, when the application was filed under Order

VII Rule 11 of the Code of Civil Procedure, without there being any

explanation in the application as to why there was such a delay in filing the

same. Learned Court observed that written statement was filed as far back

as on 20.10.2013 and there is no mention in the application filed under

Order VII, Rule 11 of the Code of Civil Procedure as to why defendants

waited for more than five years after filing of the written statement to apply

for rejection of the plaint. Learned Court also observed that settled law was

that rejection of a plaint was to be based on the basis of averments made

in the plaint and not on the basis of pleadings of the defendants and there

were limited grounds on which the plaint could be rejected and the same

did not include the ground of previous litigation. Learned Court further

observed that the ground of res judicata has to be construed in terms of the

provisions of Section 11 of the Code of Civil Procedure and further as

written statement stood filed to the plaint and as Issues stood framed, this

means that defendants had accepted that evidence shall have to be

adduced to decide the suit on merit. On these basis, the application was

rejected by the learned Court below.

5. Learned counsel for the petitioners has argued that the

impugned order is not sustainable in the eyes of law for the reason that the

learned Court below has erred in not appreciating that as the suit filed by

the plaintiff was hit by the principle of res judicata, therefore, the application

filed under Order VII, Rule 11 of the Code of Civil Procedure was

.

maintainable. He has further argued that the observations of the learned

Court below why the application was preferred after five years as from the

date of filing of the written statement were uncalled for, because an

application under Order VII, Rule 11 of the Code of Civil Procedure can be

preferred by a party at any stage and the Court cannot question the wisdom

of the litigant with regard to timing of filing of the application. Learned

counsel has further submitted that the learned Court below has erred in not

appreciating that a bare perusal of the plaint demonstrates that it does not

disclose any cause of action and, therefore, the plaint was liable to be

dismissed in terms of provisions of Order VII, Rules 11 of the Code of Civil

Procedure. Accordingly, a prayer has been made that the present petition

be allowed and the impugned order be quashed and set aside.

6. The petition is opposed by learned counsel appearing for

respondent-Rattan Lal on the ground that there is no infirmity in the

impugned order and the application has been rightly rejected by the learned

Court below by assigning reasons, as are borne out from the order passed.

Learned counsel has submitted that the provisions of Order VII Rule 11 of

the Code of Civil Procedure are very clear as to on what grounds the plaint

can be rejected and those grounds are not satisfied in terms of application

filed under Order VII, Rule 11 of the Code of Civil Procedure in the present

case by the petitioners. Learned counsel further submitted that neither there

was any explanation as to why there was delay in filing the application under

Order VII, Rule 11 of the Code of Civil Procedure nor the contention of the

.

petitioners that the plaint does not disclose any cause of action is correct

because the plaint does disclose the cause of action and whether or not the

plaintiff is entitled for the relief being prayed for shall be decided by the

learned Court below on the basis of pleadings and evidence which may be

led by the parties. Accordingly, he prayed that the present petition being

devoid of any merit, be dismissed.

7. I have heard learned counsel for the parties and have also

gone through the pleadings as well as the documents appended therewith

including the impugned order.

8. The contents of the plaint have already been referred to by me

in the above part of the order. A perusal of the plaint demonstrates that the

plaintiff has filed the suit on the cause which is stated to have arisen in his

favour on 10.10.2012, when defendants No. 4 and 5 started threatening the

plaintiff to dispossess him from the suit land and openly declared that they

have obtained interest in the suit land from defendants No. 1 to 3 on the

basis of revenue entries etc. Now, whether or not the plaintiff is entitled for

the relief which has been prayed for in the Civil Suit is not to be confused

with the cause of action. It is settled law that though cause of action has not

been otherwise defined, but the cause of action is nothing but a bundle of

facts which a party has to prove to have a decree in its favour. Now, in the

present suit, the plea of the plaintiff is that the suit land was self acquired

property of his father, which after death of his father devolved upon him as

well as his brother in equal share on account of a Will, which was duly

.

executed by his late father. It is further his contention that half of the suit

property was relinquished by his late brother in his favour and the decree

which was obtained by the plaintiff in Civil Suit No. 511/1 of 1994 is bad in

law, as the same is a result of fraud and further his contention is that part

of the suit land which has been bequeathed in favour of defendant No. 5 by

way of an exchange deed is also not permissible in law, as the same is hit

by the provisions of the Transfer of Property Act. Whether or not these

contentions of the plaintiff are sustainable on merit, obviously the plaintiff

has to lead cogent evidence to prove these facts, but on the basis of what

is contained in the plaint, it cannot be said the plaint does not disclose any

cause of action. Further, as far as the plea of the petitioners herein that the

suit is hit by the principle of res judicata is concerned, this Court is of the

considered view that if that is so, then obviously this plea must have been

taken by the petitioners in the written statement and an issue to this effect

must have been framed by the learned Trial Court and this issue obviously

will be decided by the learned Trial Court on the basis of evidence which

shall be produced by the petitioners, demonstrating that the suit is hit by the

principle of res judicata. But, the contention of the defendants in a reply that

the suit is hit by the principle of res judicata, obviously cannot lead to

rejection of the plaint, because in order to ascertain as to whether the suit

is hit by the principle of res judicata or not, obviously Court will have to look

into evidence which shall be led by the defendants. But on such a plea

which has been taken by the defendants, the plaint obviously cannot be

.

rejected. In this background, if one peruses the impugned order, the only

conclusion which can be arrived at by the Court is that there is no infirmity

therein. It is not in dispute that despite the fact that the suit was instituted in

the year 2012, the application under Order VII, Rule 11 of the Code of Civil

Procedure was filed more than five years even after filing of the written

statement. Though there is no limitation period or stage prescribed in the

Code of Civil Procedure when an application under Order VII, Rule 11 of

the Code of Civil Procedure has to be filed, but settled conventions are that

such an application has to be filed at the earliest and obviously, if a party

has not approached by way of an application under Order VII, Rule 11 of

the Code of Civil Procedure at the first available instance and has filed such

an application later on, then the Court can question the party as to why

there has been delay in filing the application and such a query of the Court

cannot be brushed aside by the party by taking the plea that the Court has

no right to put such a query to the party. This Court is of the view that delay

in filing the application under Order VII, Rule 11 of the Code of Civil

Procedure can be questioned by the Court and if such a question is posed

by the Court to a party, then the query of the Court has to be satisfactorily

answered, which the petitioners have failed to do in the present case, as

there is no cogent explanation in the application as to why there was delay

of more than five years after filing of the written statement in filing the

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

the reasoning which has been given by the learned Trial Court with regard

.

to Section 11 of the Code of Civil Procedure as to whether the plea of res

judicata can be made a ground for rejecting the plaint under Order VII, Rule

11 of the Code of Civil Procedure is cogent reasoning and the same in the

considered view of this Court calls for no interference. In fact, it appears

that the intent of filing the application under Order VII, Rule 11 of the Code

of Civil Procedure was nothing, but to delay the adjudication of the litigation.

9. Accordingly, in view of what has been observed hereinabove,

as this Court finds no merit in the present petition, the same being devoid

of any merit is dismissed, so also pending miscellaneous applications, if

any.

(Ajay Mohan Goel)

Judge October 14, 2022 (bhupender)