Sadhna Hotwani vs Raj Kumar Mehani
2021 Latest Caselaw 8665 MP

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              THE HIGH COURT OF MADHYA PRADESH

                      Civil Revision No. 254 of 2021
          (Sadhna Hotwani & ors Vs. Rajkumar Mehani & others)


Jabalpur, Dated: 13/12/2021

      Shri Narendrapal Singh Ruprah, learned counsel for the

applicants.

      Shri Utakarsh Agrawal, learned counsel for respondent no.1 to 4.

This civil revision has been filed by the defendants being

aggrieved of order dated 19/03/2021 passed by the learned 5 th Civil

Judge Class-I, Katni in RCS No.12B/2020 (Rajkumar Mehani & ors Vs.

Anmol Refractories & Chemicals & ors), whereby an application under

Order 7 Rule 11 of C.P.C filed on behalf of defendant no.3 to 5 has been

rejected on the ground that the suit has been filed against commercial

entities namely Anmol Refractories & Chemicals so also Rahul

Industries, who are respectively defendant no.1 and 2 and not against a

dead person. It is further held that it is a matter of evidence whether

defendant no.3, 4 and 5 are partners/managers/proprietors of said firm

or not.

2. Learned counsel for revision petitioner has placed reliance

on the judgment of Supreme Court in case of Shabina Abraham &

others Vs. Collector of Central Excise and Customs, (2015) 10

SCC 770, wherein it is held that notice for recovery of excise duty is

maintainable only against a living person who is chargeable with excise

duty. The definition of a "person" under the General Clauses Act, 1897

in Section 3(42), does not include legal representatives of persons who

are since deceased, for the purpose of Excise Act.

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Civil Revision No. 254 of 2021 (Sadhna Hotwani & ors Vs. Rajkumar Mehani & others)

Similarly reliance is placed on a judgment of the Supreme

Court in the case of Rajendra Bajoria & ors Vs. Hemant Kumar

Jalan & ors, 2021 SCC Online SC 764, wherein it is held that while

considering an application under Order 7 Rule 11 C.P.C court can also

take into consideration not only the averments made in the plaint but

also the averments made in the written statement because a clever

drafting can create illusion of a cause of action, and a meaningful

reading thereof would show that the pleadings are whether vexatious

and meritless or not.

3. Learned counsel for the plaintiff/respondent on the other

hand places reliance on judgment of Supreme Court in case of

Liverpool and London S.P And Lasson. Ltd Vs. M.V. Sea Success I

and another, (2004) 9 SCC 512 and placing reliance on paragraph

150 to 153, it is submitted that "in all cases of preliminary objection, the

test is to see whether any of the reliefs prayed for could be granted to

the appellant if the averments made in the petition are proved to be

true. For the purpose of considering a preliminary objection, the

averments in the petition should be assumed to be true and the court

has to find out whether those averments disclose a cause of action or a

triable issue as such. The court cannot probe into the facts on the basis

of the controversy raised in the counter."

4. Reliance is also placed on a judgment of High Court of

Judicature at Madras passed in S.A No.192/2011 & M.P No.1/2011 on

THE HIGH COURT OF MADHYA PRADESH

Civil Revision No. 254 of 2021 (Sadhna Hotwani & ors Vs. Rajkumar Mehani & others)

15/12/2016, wherein placing reliance on the judgment of the Supreme

Court in case of Kundan Lal Rallaram Vs. Custodian, Evacuee

Property, Bombay, AIR 1961 SCC 1316(1), it is held that defendants

are liable to discharge the loan borrowed by the deceased only to the

extent of the property of the deceased, which has come to their hands

and not been duly disposed of.

5. Reliance is also placed on the judgment of the Supreme

Court in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali

(Gajra) & others, (2020) 7 SCC 366, wherein the Supreme Court has

held that "the test for exercising the power under Order 7 Rule 11 is

that if the averments made in the plaint are taken in entirety, in

conjunction with the documents relied upon, would the same result in a

decree being passed." and in case of Hardesh Ores (P) Ltd. Vs. Hede

& Co., (2007) 5 SCC 614, it is held that "it is not permissible to cull

out a sentence or a passage, and to read it in isolation".

6. Placing reliance on the aforesaid judgments, it is submitted

that even otherwise defendants are only liable to the extent of estate

inherited by them in the said commercial entities, therefore, at this

stage court below was justified in not entertaining an application under

Order 7 Rule 11 C.P.C.

7. After hearing learned counsel for the parties, and going

through the judgments placed by rival parties, it is evident that extent

of involvement of the defendant no.3 to 5, who are revision petitioners

THE HIGH COURT OF MADHYA PRADESH

Civil Revision No. 254 of 2021 (Sadhna Hotwani & ors Vs. Rajkumar Mehani & others)

before this Court is yet to be determined. It is to be still determined as

to whether they have inherited any right be as proprietory or

partnership in the said firm, which were earlier manned by late Shri

Gulab Hotwani, as a proprietor. Even otherwise, it has come on record

that legal notice was issued to the firm and therefore plaintiff being the

master of the suit has to decide the averments to be made in the plaint

and they cannot be dissected in a pick and choose manner.

8. As far as law laid down in Shabina Abraham (supra) is

concerned, it is held that a dead person's estate may be taxed but not

the legal heirs without necessary provisions in the tax statute. It is true

that in some circumstances when the plaint averments are ambiguous

written statement can be looked into to make a meaningful reading of

the plaint averments so to decipher the right of the parties to sue but at

the same time ratio of the law laid down in the case of Rajendra Bajoria

& ors (supra) is not that irrespective of the clarity in the averments in

the plaint, defence of the other parties is to be taken into consideration.

In fact law laid down in case of Liverpool and London S.P (supra) and

so also in the case of Hardesh Ores (P) Ltd (supra) makes it abundantly

clear that only plaint averments are to be seen and when tested on this

aspect then without ascertaining the extent of inheritance of the

revision petitioner in the said two commercial entities, which is

admittedly a matter of evidence, application under Order 7 Rule 11

C.P.C could not have been allowed. It has been rightly dismissed by the

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Civil Revision No. 254 of 2021 (Sadhna Hotwani & ors Vs. Rajkumar Mehani & others)

trial court, which does not call for any interference. Accordingly,

revision fails and is dismissed.

(Vivek Agarwal) Judge Digitally signed tarun by TARUN KUMAR SALUNKE Date: 2021.12.15 10:32:35 +05'30'