Madhya Pradesh High Court

Smt. Btraso Bai vs Smt. Kishan Devi on 3 March, 2021

Author: Rajeev Kumar Shrivastava

                                  -( 1 )-           CR No. 34/2021
             Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.



             HIGH COURT OF MADHYA PRADESH
                   BENCH AT GWALIOR

                               (Single Bench)

                       Civil Revision No. 34/2021

Smt. Btaso Bai                                     ..... PETITIONER
                                    Versus
Smt. Kishan Devi & Ors.                          ..... RESPONDENTS

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CORAM

           Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

       Shri N.K. Gupta, learned Senior Counsel with Shri Ravi
Gupta, counsel for the petitioner.

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Whether approved for Reporting               :       No

Reserved on           :       25.02.2021

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                                 ORDER

(Passed on 03rd March, 2021)

The order dated 22/1/2021 passed by Civil Judge

Class-I, Gohad, District Bhind in Civil Suit

No.56A/2020, has been called in question by way of

-( 2 )- CR No. 34/2021 Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.

present revision, whereby the court below has dismissed

the application under Order 7 Rule 11 CPC filed by the

present petitioner/ defendant.

2. Briefly stated facts of the case are that respondent

No.1/plaintiff filed a suit for declaration of right,

permanent injunction and partition in which it is prayed

that the sale deed dated 26/6/2009 be declared null and

void. It is pleaded by the plaintiff in the suit that

Tularam was the owner of the disputed property. After

his death, share of respondent No. 1/plaintiff was

recorded in the revenue record as 1/5 t h along with other

legal heirs of Tularam. Thereafter, Bithala Bai died in

the year 2017. It is further pleaded in the plaint that

respondent No. 1/plaintiff is residing in her in-laws

house and was getting the land cultivated through son of

petitioner/defendant No. 1 but since year 2017, benefit

of crop was not given to the plaintiff. When the plaintiff

contacted the patwari, it came to her knowledge that the

name of respondent No. 1/plaintiff is not recorded in the

revenue record and petitioner/ defendant No. 1 was the

owner of the disputed property, who sold the land to

respondent No. 5 Urmila Devi. It is further pleaded in

-( 3 )- CR No. 34/2021 Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.

the plaint that son of the petitioner/ defendant No. 1 by

creating a forged document in the name of respondent

No. 1/ plaintiff and defendant Nos. 2 to 4 got executed

the sale deed dated 26/6/2009 and thereafter sold the

property to respondent No. 5 Urmila Devi by sale deed

dated 30/6/2016. In that regard, a complaint was also

filed before the JMFC under Sections 420, 467 and 468

of IPC which was dismissed on 17/3/2020 and,

thereafter, present suit was filed by the plaintiff praying

for declaring the sale deed dated 26/6/2009 null and

void and for permanent injunction.

3. It is submitted by learned counsel for the

petitioner/ defendant No. 1 that the petitioner has

specifically raised preliminary objection about

maintainability of the suit filed by respondent No. 1/

plaintiff before the Court below. In the suit, it is pleaded

by respondent No. 1/ plaintiff that Tularam was the

owner of the disputed property, who left behind his wife

Bithala Bai, two sons and two daughters. Thereafter,

Bithala Bai has died in the year 2017. Respondent No. 1/

plaintiff and defendants No. 2 to 4 are the legal heirs of

deceased Tularam. It is further submitted that in the suit,

-( 4 )- CR No. 34/2021 Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.

petitioner/ defendant No. 1 filed an application under

Order 7 Rule 11 CPC by objecting that the plaintiff was

the party to the sale deed dated 26/6/2009 and plaintiff

had not valued the property correctly and had also not

paid ad-valorem court-fee, which is required as per law.

The suit was also barred by limitation. Reply to the

application was filed but the Court below has erred in

rejecting the aforesaid application by the impugned

order dated 22/1/2021. Hence, prayed for setting aside

the impugned order by allowing the present revision.

4. Heard learned counsel for the petitioner and

perused the material available on record.

5. On perusal of record, it is apparent that the civil

suit has been filed by respondent No. 1/ plaintiff

wherein application under Order 7 Rule 11 CPC was

filed by the present petitioner/ defendant No. 1.

6. Learned counsel for the petitioner placed reliance

upon the judgment passed by the Supreme Court in the

case of Suhrid Singh @ Sardool Singh vs. Randhir

Singh & Ors., [(2010) 2 SCC 112] as well as on the

judgments passed by this Court in the cases of Ambika

Prasad & Ors. vs. Shri Ram Shiromani @ Chandrika

-( 5 )- CR No. 34/2021 Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.

Prasad Dwivedi & Anr., [2011 (3) MPLJ 184] and

Halka Kushwaha & Ors. vs. Pyarelal Kachhi & Ors.,

[2017 (2) MPLJ 428] and has submitted that as the

plaintiff was party to the sale deed, therefore, ad-

valorem court-fee is required to be paid.

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

runs as under :-

"Order VII Rule 11 - Rejection of plaint-- 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 undervalued, and the plaintiff, on being required by the Court to 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 returned 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 provisions of rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be

-( 6 )- CR No. 34/2021 Smt. Btaso Bai vs. Smt. Kishan Devi & Ors.

recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, 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."

8. It is well settled principle of law that while

considering the application under Order 7, Rule 11 of

CPC, only the averments made in the plaint alone are to

be looked into.

9. The scope of scrutiny at the stage of consideration

of an application under Order 7, Rule 11 of CPC is

confined only to the averments made in the plaint which

could not be decided by way of an application under

Order 7 Rule 11 of CPC. See, Surjit Kaur Gill and

another vs. Adarsh Kaur Gill and another [(2014) 16

SCC 125); P.V. Guru Raj Reddy vs. P. Neeradha

Reddy and others [(2015) 8 SCC 331]; and, Madanuri