Most. Lilawati Devi vs Smt. Pratima Devi
2023 Latest Caselaw 2760 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                C.M.P. No.410 of 2023
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Most. Lilawati Devi .... .... .... Petitioner Versus

1. Smt. Pratima Devi

2. Shyam Kishore Tiwari

3. Lalita Devi

4. Sunil Kumar Singh

5. Akhileshwar Pandey

6. Jawshwar Pandey

7. Asharfi Tiwari

8. Sanjay Tiwari

9. Chandra Sekhar Tiwari 10 Satendra Tiwari

11. Sangita Tiwari .... .... .... Respondents

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Coram: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioner : Mr. Tirtha Nandan Jha, Advocate For the Respondents :

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Order No.04 Dated- 10.08.2023 The case is listed under the heading "For Fresh Filing".

2. Heard, learned counsel for the plaintiffs/petitioners.

3. Instant petition under Article 227 of Constitution of India is directed against the order dated 28.02.2023 passed by Sri Satish Kumar Munda, Civil Judge(Jr. Div.) I, Palamau at Daltonganj passed in Original Suit No.40 of 2023 (Annexure-3) whereby and whereunder, learned Civil Judge (Jr. Div.) has rejected the plaint of the petitioner under order 7, Rule 11(d) of CPC.

4. The case of plaintiff/petitioner is that Suit Plot No.585 of Khat No.40 total area 1.04 acre of village Sudana, P.S. Daltonganj, District Palamau was recorded in last cadastral survey and settlement operaton in the name of three brothers namely Hira Ojha, Sheodhyan Ojha and Jagdish Ojah along with others land. It is alleged that through amicable partition amongst them said land allotted exclusively in the share of Jadish Ojha. It is alleged that Jagdish Ojah died in the year 1947 living behind two widows namely Suchit Kuer and Rukmini Kuer although Suchit Kuer died issueless whereas Rukmini Kuer died in 1961 leaving behind a daughter Jasmati Kuer who succeeded in the interest of her mohtere and her name has been mutated in respect of said land through mutation Case No.330 of 1960/61.

It is alleged that Jasmati has executed a registered sale deed on 07.07.1995 for an area 22.1/2 decimals out of said plot No.585 of Khata No.40 which was objected by other co-brothers of Jagdish Ojha claiming their share, hence, defendant Nos.1 and 2 again approached to Jasmati to execute another sale deed in respect of same plot of land and same are with verbal assurance, if sale deed of the year 1995 is found valid in civil suit they will return the land under second sale deed, accordingly, Jasmati executed another Sale Deed No.5497 dated 26.05.1997 without receiving any consideration money.

It is further alleged that defendant No.1 Pratima Devi filed Title Suit No.65 of 1998 which was decreed over scheduled A land, the said land covers under sale deed of the year 1995. In the judgment dated 29.06.2013 passed by learned Civil Judge-I, Palamau at Daltonganj. It is further alleged that after passing judgment and decree in the aforesaid title suit, the plaintiff being heir of Jasmati have right, title and interest over the property and approached to defendant Nos.1 and 2 to execute the sale deed in her favour as per assurance given at the time of execution of sale deed dated 26.05.1997 for return of the land but the defendants refused to return the land. Hence present suit was instituted.

5. Learned trial court while hearing Title Suit No.40 of 2023 on point of admission, rejected the same purportedly passing the order under order 7 Rule 11(d) of CPC under wrong appreciation of facts. Admittedly no appeal against the impugned order as per provision of Section 96 read with order 41 of CPC has been preferred.

5. It is submitted by learned counsel for the petitioner that learned court below has wrongly recorded the finding that the suit for cancellation of the sale deed was time barred without taking into notice the entire averments of plaint and reliefs sought for Para-11 of the plaint is concerned about execution of sale deed due to fraud and petitioner came to know about the said fraud later and filed the original suit. Hence, impugned order is fit to be set aside.

6. At this juncture, the relevant provision is required to be quoted order 7 rule 11 of CPC- 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 under-valued, and the plaintiff, on being required by the Court to so 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 written 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 provision of Rule 9:]][Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers 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-papers, 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.] Section 2 (2) of CPC- Definitions of Decree- "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights or the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

7. Perusal of the aforesaid provision, it is crystal clear that rejection of plaint under order 7, Rule 11 of CPC is deemed to be "decree" for which statutory remedy of appeal is provided under Section 96 read with Section 41 of CPC and present petition filed under Article 227 of Constitution is not entertainable, The Hon'ble Apex Court in the case of Mohamed Ali Vs. Jaya & Ors. in Civil Appeal No.4113 of 2022 dated 11.07.2022 has held as under:-

"wherever proceedings are under the Code of Civil Procedure and the forum is the civil court, the availability of a remedy under code of Civil Procedure will deter the High court, not merely as a measure of self- imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Therefore, present petition under article 227 of Constitution cannot be entertained in view of the specific statutory provision of appeal provided in the CPC."

8. In the instant case also the impugned order being a "decree" is amenable to remedy of appeal under Section 96 read with order 41 of the Code of Civil Procedure.

9. After considerable argument, learned counsel for the petitioner seeks to withdraw this petition for agitating the petition before proper forum.

10 Permission is accorded.

11. Accordingly, this petition is dismissed with liberty to the petitioner to seek remedy before the proper forum which shall be disposed off in accordance with law.

(Pradeep Kumar Srivastava, J.) Pappu/