Smt. Shakuntla Agrawal vs Manish Gupta
2022 Latest Caselaw 3139 MP

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           The High Court Of Madhya Pradesh
                     CR No. 754 of 2019
               (SMT. SHAKUNTLA AGRAWAL AND OTHERS Vs MANISH GUPTA AND OTHERS)

Gwalior, Dated : 07-03-2022
       Shri V.K.Bhardwaj, Sr.Advocate with Shri Rohit Batham, counsel for the

petitioners.
       Shri Sumant Mishra, counsel for the respondent no.1.

1. This Civil Revision has been filed against the order dated 25.9.2019 passed by learned XIV Civil Judge Class I, Gwalior in Civil Suit No.11A of 2019

(Manish Gupta Vs. Smt. Shakuntala Agarwal and Others), whereby, the application filed by the petitioners/defendants under Order 7 Rule 11 of CPC has been dismissed.

2. Heard learned counsel for the parties and perused the material made available on record.

3. Learned Sr. counsel for the petitioners Shri V.K.Bhardwaj, submits that on bare perusal of the plaint, undisputedly, the suit property was purchased by mother of the plaintiff who sold the same by registered sale deed to the petitioners. Thus, the suit property is to be taken as self acquired property of the mother of the

plaintiff and alienation of the same cannot be challenged by anyone including her son. The suit property though falsely shown to be the joint family property, but alienation of joint family property also cannot be challenged by members of joint family except if the same has been sold for some unethical or illegitimate purposes only to deprive the family members of their share in such joint family property. In this case, no such ground has been even pleaded. Filing of the suit in the present case is glaring example of abuse of process of law only to harass and blackmail the petitioners/bonafide purchasers. Therefore, the suit is not maintainable at all.

4. Learned counsel for the petitioners further submits that the petitioners had purchased the suit property through a registered sale deed on 2.9.2005 from mother of the plaintiff. The plaintiff being a real son of the seller, is well aware of the fact of the sale deed and uninterrupted settled possession of the defendants over the suit property. Still the suit for declaration of the sale deed as null and void has been filed after fourteen years of the execution of the sale deed which is per se

beyond limitation.

5. The suit has been filed on the premise that the suit property was purchased from the corpus of joint family in the name of mother and the mother alone was not competent to sell the same. Thus the suit has clear allegation of

Benami Transaction and accordingly, the same is barred by Section 4 of the Benami Transaction Prohibition Act, 1988.

6. The plaintiff has not sought relief of possession from the petitioners and accordingly, the suit is not maintainable as per proviso to Section 34 of the Specific Relief Act.

7. The plaintiff has not adequately valued the suit with regard to the relief of partition as per market value of the property which is around Two Crore of rupees.

8. The grounds raised in the application under Order 7 Rule 11 of CPC are well established on bare perusal of the plaint itself, but the learned trial court has dismissed the application in arbitrary manner. The petition deserves to be allowed. He has placed reliance upon the judgments rendered by Hon'ble Supreme Court in the case of Smt. Leelavathi (D) by Lrs. Vs. Shankarnarayana Rao (D) by Lrs, reported in 2019 SAR (Civil) 672 and by this court in Anand Kumar Vs. Vijay Kumar and Others reported in 2012 (3) MPLJ 129, Mohd. Shakeel Vs. Husna Bano and others reported in 2017 (2) MPLJ 167 and in Anita Jain Vs. Dilip Kumar and Another reported in 2018 (1) MPLJ 554.

9. Learned counsel for the respondent/plaintiff submits that the objections as to maintainability of suit have not been raised before the trial court and no written statement has been filed so far, therefore, the same cannot be entertained in this petition.

10. He further submits that the provisions of Benami Transaction Prohibition Act 1988, are not applicable to the joint family property. So far as the issues of limitation and court fee are concerned, the same are mixed question of facts and law which can only be decided after recording of evidence of both the parties. In such a situation, the learned trial court has rightly dismissed the application of petitioners. The petition deserves to be dismissed. He has placed reliance upon the judgments rendered by Hon'ble Apex Court in the cases of

Chhotanben and another Vs. Kiritbhai Jalkrushnabhai Thakkar and Others reported in (2018) 6 SCC 422 and Pawan Kumar Vs. Babulal since deceased Through Lrs and others reported in (2019) 4 SCC 367.

11. Heard. Considered.

12. This is a well settled legal position as expounded by Hon'ble Supreme Court in the case of Nusli Neville Wadia Vs. Ivory Properties and Others reported in (2020) 6 SCC 557 that, for disposal of an application filed under Order 7 Rule 11 of CPC, the averment of plaint can only be taken into consideration. The version of defendant (s), either in their application or written

statement, cannot be looked into for the purpose. Further, the suit or the part thereof, can be disposed of on the basis of pure legal issue whether under Order 7 Rule 11 or under Order 14 Rule 2 of Code of Civil Procedure if the same can be decided without taking evidence of the parties. However, the mixed issues of law and facts cannot be decided preliminarily and in that situation, the court has to decide all the issues after the evidence is adduced by the parties.

13. Indisputedly, present suit has been filed claiming the suit property as Joint Hindu Family Property and as per the legal position expounded in the judgment cited on behalf of the respondent/plaintiff, the bar of Section 4 of Benami Transaction Act 1988 is not attracted in case of joint family property. The judgments cited on behalf of the petitioners are not related to the joint family property, therefore, the same are not applicable to this case. Thus, the objection in this regard is not tenable.

14. The trial court after taking into consideration the averments of plaint has rightly concluded that the issue of limitation is a mixed question of law and fact which can be decided only after evidence of the parties. The supportive facts raised with regard to limitation by the petitioners cannot be taken into consideration at this initial stage. Therefore, the trial court has not committed any illegality on this count also.

15. Learned Sr.Counsel for the petitioners has further contended that the relief of possession from the defendant/purchaser has not been sought by the plaintiff, therefore, the suit is not maintainable as per proviso to Section 34 of the Specific Relief Act, but such objection was not raised before the trial court,

therefore, this court cannot consider the same at this stage. However, the defendants can take such objection in the written statement which shall be suitably dealt with by the trial court in accordance with law.

16. The learned trial court has primarily concluded that the valuation of the suit has been made properly and adequate court fee has been paid accordingly. The issue of court fee has also been kept open for the later stage, therefore, looking to the frame of plaint, the finding with regard to court fee cannot be faulted with at this stage.

17. Though maintainability of the present suit has been questioned but such objection as to maintainability of the suit has not been taken before the trial court and no written statement has been filed as yet, therefore, this court refrains to consider the same straight way in this petition.

18. In view of the above discussion and the reasons stated, while maintaining the impugned order, the petition is disposed of with a direction that the defendants/petitioners shall file written statement by the next date fixed by the trial court in the matter. They may take all the grounds as to maintainability of the present suit. The trial court shall not grant any further adjournment for the purpose. After filing of written statement, the trial Court, without further loss of time, shall frame the issues. If on consideration of the material propositions in the pleadings of the parties, such legal issues are framed which can be decided without taking of evidence of the parties, the trial court shall take up and decide the same preliminarily without being influenced by the order impugned herein.

(SATISH KUMAR SHARMA) JUDGE

Rks RAM KUMAR SHARMA 2022.03.09 17:49:13 +05'30'