Madhya Pradesh High Court
Idibai Wd/O Sher Mohammad Thr. Lrs Siraj vs Dashrath @ Dashariya on 5 August, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'LE SHRI JUSTICE HIRDESH
ON THE 5th OF AUGUST, 2024
CIVIL REVISION No. 665 of 2019
IDIBAI WD/O SHER MOHAMMAD THR. LRS SIRAJ AND OTHERS
Versus
DASHRATH @ DASHARIYA AND OTHERS
Appearance:
Shri Dattatray Kale, learned counsel for the petitioners.
Shri Durgesh Sharma, learned counsel for the respondent no.1.
Shri Amit Raval, learned Government Advocate for the respondent/State.
ORDER
This Civil Revision under Section 115 of CPC has been filed against the
order dated 16.09.2019, Annexure P-10, passed by Ist Civil Judge, Class-I,
Manawar, district Dhar in Civil Suit No.12-A/2017.
2. The brief facts of the case is that an agricultural land bearing
Survey NO.45/2K/1, 1.987 hectare situated at village Ukhalda, Tehsil Manwar
was owned by JummaKha who died leaving behind one son Kale Kha
(respondent no.8) and two daughters namely Idibai (petitioner no.6 who died
on 07.06/2019 and petitioners no.1 to 5 are her sons) and Mobabai(respondent
no.9). After death of said Jummakha his son Kale kha sold 1.113 hectare land
to Babulal (respondent No.2) vide sale deed dated 8/5/1987 and 0.812 hectare
was sold to Dashrath( respondent No.1) vide sale deed dated 24/10/1989.
Therefore, Idibai (Mother of the petitioners No. 1 to 5) filed a Suit no.15-
A/1996 for declaration of her share, partition, possession & mesne profits. In
the said suit two purchasers i.e respondents No.1 & 2 were also made parties
along with Kalekha & Mobabai. i.e respondents No. 8 & 9.
3. The said suit was decided on merits by the Civil Judge Class II
Manawar and decree for partition & possession of the share i.e.0.497 hectare
and recovery of mesne profit was passed vide judgment and decree dated
16/1/1998. The said judgment and decree was challenged by the purchasers i.e
respondents No.1 & 2 by filing CRA 4-A/1998 before the ADJ Manawar who
dismissed the said appeal vide judgment dated 20.08.2002 and maintained the
decision of the trial court. No further second appeal was filed against the said
judgment and it became final between parties.
4. The said decree was put to execution in which objections were
raised by the respondents but those were rejected on 23/1/2014 and direction
was issued to revenue court for making partition and delivery of possession 1/2
share which comes to 0.497 hectare. Accordingly on 28/2/2014 possession of
0.497 hectare land was delivered to decree holder Idibai- mother of the
petitioners No.1 to 5 and report was submitted to executing court who recorded
the fact in the proceedings dated 1/3/2014 and execution was continued for
recovery of mesne profit. Subsequently compromise application was filed
before the executing court hence matter was placed before the Lok Adalat held
on 13/12/2014. On that date compromise was accepted and direction was
issued to revenue officer to fix boundaries of 0.497 hectare land showing half
of the land from Babulal & half from Dhasharath. The said order was complied
with by the revenue court and panchanama was prepared on 10/12/2015 &
revenue proceedings were closed.
5. On 7/3/2017 the respondent No.1 herein filed a fresh suit No.
12-A/2017 against the petitioners and respondents No.2 to 9 alleging that
earlier judgment and decree was void and nullity and execution was also barred
by limitation hence entire proceedings were void and Idibai did not acquired
any title to said land. It is also alleged that compromise submitted to LokAdalat
was also void and possession was delivered illegally by making encroachment
on his land with the help of Babulal. Therefore the respondent No.1 has sought
declaration of his title in respect of 0.812 hectare land of Survey No.45/2k/1
and also sought possession of 0.497 hectare land from the petitioners.
6. After service of summons of the plaint, the petitioners filed their
written statement denying plaint allegation and also filed separate application
under 0rder 7 Rule 11 CPC for rejection of plaint on the ground that such type
of suit is not maintainable in respect of same property and plaintiff be stopped
from claiming the relief which is contrary to the judgment and decree passed in
earlier suit which became final between parties, suit is barred by res-judicata
and limitation. The respondent No.1 filed reply to said application and after
hearing arguments of parties, the learned trial judge has dismissed the
application filed by the petitioners vide impugned order dated 16/9/2019 by
saying that suit is maintainable under Section 44 of the Evidence Act and
question of res-judicata and limitation are mixed questions of facts and law
which can be decided after recording evidence.
7. Being aggrieved by the impugned order, the petitioners filed this
civil revision and submitted that the trial Court has committed error in law in
rejecting the application when the relief claimed in the new plaint is contrary to
the judgment and decree passed in earlier suit which became final between the
parties. Admittedly, the property is the same and the parties are also same and
merely because revenue officers are made parties to new suit the effect of
earlier decision cannot be ignored.
8. Learned counsel for the respondents supported the impugned
order and prays for dismissal of civil revision.
9. After hearing the learned counsel for the parties and perusal of the
documents adduced by both the parties, it is undisputed that earlier suit has
been decided on 16.01.1998 by Civil Judge, Class II, Manawar, district Dhar in
Civil Suit No.15-A/1996. The first appellate Court affirmed the judgment and
decree passed by the Civil Judge, Class-II, Manawar, district Dhar in Civil Suit
No.15-A/96 rejecting the appeal filed by Babulal and Dashriya on 20.08.2002.
Thereafter, petitioners filed execution proceedings before the trial Court in
which the petitioners and respondents filed compromise application and the
trial Court passed order on the basis of compromise application filed by both
the parties. Thereafter, respondents again filed the civil suit before the trial
Court.
10. In Bharvagi Construction and another Vs.
KothakapuMuthyam Reddy and others reported in AIR 2017 SC 4428 the
Apex Court held that the award of the LokAdalat cannot be challenged on the
ground of fraud and misrepresentation. It can only be challenged by filing writ
petition invoking Article 226,227 of the Constitution of India.At the time of
considering the application under Order 7 Rule 11 of CPC, it is clear that only
plaint averments must be seen. Order 7 Rule 11 (d) expressly stated that suit
which is barred by any law must be rejected. Expression "barred by any law"
occurring in clause (d) of Rule 11 of Order 7 not only includes any Act enacted
by the legislature creating a "bar" but the expression "law" includes therein
"judicial decision of the Supreme Court" also, which are binding on all the
Courts in the Country by virtue of Article 141 of the Constitution of India.In
Bharvagi‟s case (Supra), the Apex Court held as under:-
"25. The question arose before this Court (Three
Judge Bench) in the case of State of Punjab and another
Vs. Jalour Singh and others (2008) 2 SCC 660 as to what is
the remedy available to the person aggrieved of the award
passed by the LokAdalat under Section 20 of the Act. In that
case, the award was passed by the LokAdalat which had
resulted in disposal of the appeal pending before the High
Court relating to a claim case arising out of Motor Vehicle
Act. One party to the appeal felt aggrieved of the Award and,
therefore, questioned its legality and correctness by filing a
writ petition under Article 226/227 of the Constitution of
India. The High Court dismissed the writ petition holding it
to be not maintainable. The aggrieved party, therefore, filed
an appeal by way of special leave before this Court. This
Court, after examining the scheme of the Act allowed the
appeal and set aside the order of the High Court. This Court
held that the High Court was not right in dismissing the writ
petition as not maintainable. It was held that the only remedy
available with the aggrieved person was to challenge the
award of the LokAdalat by filing a writ petition under
Article 226 or/and 227 of the Constitution of India in the
High Court and that too on very limited grounds. The case
was accordingly remanded to the High Court for deciding the
writ petition filed by the aggrieved person on its merits in
accordance with law.
26. This is what Their Lordships held in Para 12:
"12. It is true that where an award is made by the
LokAdalat in terms of a settlement arrived at between the
parties (which is duly signed by parties and annexed to the
award of the LokAdalat), it becomes final and binding on the
parties to the settlement and becomes executable as if it is a
decree of a civil court, and no appeal lies against it to any
court. If any party wants to challenge such an award based on
settlement, it can be done only by filing a petition under
Article 226 and/or Article 227 of the Constitution, that too on
very limited grounds. But where no compromise or
settlement is signed by the parties and the order of the
LokAdalat does not refer to any settlement, but directs the
respondent to either make payment if it agrees to the order, or
approach the High Court for disposal of appeal on merits, if it
does not agree, is not an award of the LokAdalat. The
question of challenging such an order in a petition under
Article 227 does not arise. As already noticed, in such a
situation, the High Court ought to have heard and disposed of
the appeal on merits."
27. In our considered view, the aforesaid law laid down
by this Court is binding on all the Courts in the country by
virtue of mandate of Article 141 of the Constitution. This
Court, in no uncertain terms, has laid down that challenge to
the award of LokAdalat can be done only by filing a writ
petition under Article 226 and /or Article 227 of the
Constitution of India in the High Court and that too on very
limited grounds.
28. In the light of clear pronouncement of the law by this
Court, we are of the opinion that the only remedy available to
the aggrieved person(respondents herein/plaintiffs) was to
file a writ petition under Article 226 and/or Article 227 of
the Constitution of India in the High Court for challenging
the award dated 22.08.2007 passed by the LokAdalat. It was
then for the writ Court to decide as to whether any ground
was made out by the writ petitioners for quashing the award
and, if so, whether those grounds are sufficient for its
quashing.
29. The High Court was, therefore, not right in by passing the
law laid down by this Court on the ground that the suit can be
filed to challenge the award, if the challenge is founded on
the allegations of fraud. In our opinion, it was not correct
approach of the High Court to deal with the issue in question
to which we do not concur.
30. We also do not agree with the submissions of Mr.
Adinarayana Rao, learned senior counsel for the respondents
when he urged that firstly, the expression "law" occurring in
clause(d) of Rule 11 Order 7 does not include the "judicial
decisions" and clause (d) applies only to bar which is
contained in "the Act" enacted by the Legislature; and
Secondly, even if it is held to include the "judicial decisions",
yet the law laid down in the case of State of Punjab (supra)
cannot be read to hold that the suit is barred. Both these
submissions, in our view, have no merit.
31. Black's Law Dictionary (Ninth Edition) defines the
expression "law". It says that "Law" includes the "judicial
precedents" (see at page 962). Similarly, the expression "law"
defined in Jowett‟s Dictionary of English Law (Third Edition
Volume-2, (pages 1304/1305) says that "law is derived from
judicial precedents, legislation or from custom. When derived
from judicial precedents, it is called common law, equity, or
admiralty, probate or ecclesiastical law according to the
nature of the Courts by which it was originally enforced".
32. The question as to whether the expression "law"
occurring in clause(d) of Rule 11 of Order 7 of the Code
includes "judicial decisions of the Apex Court" came up for
consideration before the Division Bench of the Allahabad
High Court in Virender Kumar Dixit vs. State of U.P.,
2014(9) ADJ 1506. The Division Bench dealt with the issue
in detail in the context of several decisions on the subject and
held in para 15 as under:
"15. Law includes not only legislative enactments but also
judicial precedents. An authoritative judgment of the Courts
including higher judiciary is also law."
33) This very issue was again considered by the Gujarat High
Court (Single Bench) in the case of Hermes Marines Limited
vs. Capeshore Maritime Partners F.Z.C. &Anr. (unreported
decision in Civil Application (OJ) No.144 of 2016 in
Admiralty Suit No.10 of 2016 decided on 22.04.2016). The
learned Single Judge examined the issue and relying upon the
decision of the Allahabad High Court quoted supra held in
Para 53 as under:
"53. In the light of the above discussion, in the considered
view of this Court, it cannot be said that the term "barred by
any law" occurring in clause(d) of Rule 11 of Order 7 of the
Code, ought to be read to mean only the law codified in a
legislative enactment and not the law laid down by the
Courts in judicial precedents. The judicial precedent of the
Supreme Court in Liverpool & London Steamship Protection
and Indemnity Association vs. M.V. Sea Success, 2004(9)
SCC 512 has been followed by the decision of the Division
Bench in Croft Sales & Distribution Ltd. vs. M.V. Basil,
2011(2) GLR 1027. It is, therefore, the law as of today, which
is that the Geneva Convention of 1999 cannot be made
applicable to a contract that does not involve public law
character. Such a contract would not give rise to a maritime
claim. As discussed earlier, the word „law‟ as occurring in
Order 7 Rule 11(d) would also mean judicial precedent. If the
judicial precedent bars any action that would be the law."
34. Similarly, this very issue was again examined by the
Bombay High Court (Single Judge) in Shahid s. Sarkar
&Ors. Vs. UshaRamraoBhojane, 2017 SCC OnLineBom
3440. The learned Judge placed reliance on the decisions of
the Allahabad High Court in Virender Kumar Dixit vs. State
of U.P. (Supra) and the Gujarat High Court in Hermes
Marines Limited (supra) and held as under:
"18................The law laid down by the highest court of a
State as well as the Supreme Court, is the law. In fact, Article
141 of the Constitution of India categorically states that the
law declared by the Supreme Court shall be binding on all
Courts within the territories of India. There is nothing even
in the C.P.C. to restrict the meaning of the words "barred by
any law" to mean only codified law or statute law as sought
to be contended by Mr. Patil. In the view that I have taken, I
am supported by a decision of the Gujarat High Court in the
case of Hermes Marines Ltd....................................."
"19. One must also not lose sight of the purpose and intention
behind Order VII Rule 11(d). The intention appears to be that
when the suit appears from the statement in the plaint to be
barred by any law, the Courts will not unnecessarily protract
the litigation and proceed with the hearing of the suit. The
purpose clearly appears to be to ensure that where a
Defendant is able to establish that the Plaint ought to be
rejected on any of the grounds set out in the said Rule, the
Court would be duty bound to do so, so as to save expenses,
achieve expedition and avoid the court‟s resources being used
up on cases which will serve no useful purpose. A litigation,
which in the opinion of the court, is doomed to fail would not
further be allowed to be used as a device to harass a
Defendant......................."
35. Similarly, issue was again examined by the High Court of
Jharkhand(Single Judge) in Mira Sinha &Ors. Vs. State of
Jharkhand &Ors., 2015 SCC OnLine Jhar.4377. The learned
Judge, in paragraph 7 held as under:
"7. In the background of the law laid down by the Hon‟ble
Supreme Court, it is apparent that Order VII Rule 11(d)
C.P.C. application is maintainable only when the suit is
barred by any law. The expression "law" included in Rule
11(d) includes Law of Limitation and, it would also include
the law declared by the Hon‟ble Supreme Court........."
36. We are in agreement with the view taken by Allahabad,
Gujarat, Bombay and Jharkhand High Courts in the
aforementioned four decisions which, in our opinion, is the
proper interpretation of the expression "law" occurring in
clause (d) of Rule 11 of Order 7 of the Code. This answers
the first submission of the learned counsel for the respondents
against the respondents.
37. So far as the second submission of learned counsel for the
respondents is concerned, it also has no merit. In our view,
the decision rendered in the case of State of Punjab (supra) is
by the larger Bench (Three Judge) and is, therefore, binding
on us. No efforts were made and rightly to contend that the
said decision needs reconsideration on the issue in question.
That apart, when this Court has laid down a particular remedy
to follow for challenging the award of LokAdalat then in our
view, the same is required to be followed by the litigant in
letter and spirit as provided therein for adjudication of his
grievance in the first instance. The reason being that it is a
law of the land under Article 141 of the Constitution of India
(see - M. Nagaraj &Ors. Vs. U.O.I. &Ors. 2006 ( 8 ) SCC
212). It is then for the writ court to decide as to what orders
need to be passed on the facts arising in the case."
11. In view of the foregoing discussion, this Court is of the considered
opinion that the trial Court has erred in law in rejecting the application under
Oder 7 Rule 11 of CPC. The suit filed by the respondents before the trial Court
is barred by law under Order 7 Rule 11(d).
12. Resultantly, the Civil Revision is allowed. The impugned order
dated 16.09.2019 passed by Ist Civil Judge, Class-I, Manawar, district Dhar is
set aside. The application filed under Order 7 Rule 11 is allowed and the plaint
filed by respondent no.1 is rejected.
(HIRDESH)
JUDGE
RJ
