Madhya Pradesh High Court

Bhagirath Deceased Through Lrs. Smt. ... vs Sudama on 6 August, 2024

Author: Hirdesh

Bench: Hirdesh

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IN     THE      HIGH COURT               OF MADHYA PRADESH


                             AT I N D O R E
                                  BEFORE
                 HON'BLE SHRI JUSTICE HIRDESH

                     ON THE 6th OF AUGUST, 2024

                   CIVIL REVISION No. 558 of 2023
BHAGIRATH DECEASED THROUGH LRS. SMT. DURGABAI AND
                    OTHERS
                     Versus
              SUDAMA AND OTHERS


Appearance:
   Shri Shailendra Polekar, learned counsel for the petitioner.

     Shri Nipun Choudhary, learned counsel for the respondent Nos.1 to 3.



                                   ORDER

This civil revision has been filed by the petitioner/plaintiff being aggrieved by the order dated 27.07.2023 passed by 28th District Judge, Indore in Civil Suit No.74-A/16.

2. Brief facts of the case are that plaintiff/petitioner filed a civil suit against the defendant for declaration and permanent injunction in which respondent/defendant filed written statement with counter claim. In the counter claim, he pleaded that the plaintiff gave notice to the defendant in the year 2011 then cause of action arises. Thereafter, plaintiff filed an application under Order 7 Rule 11 of CPC stating that the counter claim is barred by limitation because it was filed after a lapse of 7 years.

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3. Trial court after hearing both the parties passed the impugned order and rejected the application filed by the petitioner/plaintiff holding that the question of limitation is a mixed question of law and facts and it shall be decided after taking the evidence.

4. Being aggrieved by the aforesaid impugned order, petitioner/plaintiff filed this civil revision on the ground that the impugned order passed by trial court is perverse and contrary to law. The trial court has failed to properly and legally exercise its jurisdiction vested in it by law. It is clear from the perusal of the counter claim that this counter claim is barred by limitation and trial court has committed gross error of law in dismissing the application filed under Order 7 Rule 11 of CPC. Hence, it is prayed that present civil revision be allowed and the impugned order as well as consequential counter claim may be rejected.

5. On the other hand, learned counsel for the respondent opposes the revision petition and prays for its rejection.

6. After hearing the learned counsel for the parties and perusal of the record it is found that respondent filed a counter claim and pleaded in para 5 of the counter claim as under:-

"5& ;g fd] izfroknh Ø-1 yxk;r 3 dks dkmaVj Dyse izLrqfr dk dkj.k tc oknhx.k }kjk izdj.k esa okn izLrqr fd;k vkSj mldk lwpuki= bu izfroknhx.k dks o"kZ 2011 esa izkIr gqvk vkSj oknh Ø- 2 }kjk Ø-1 ls laxuer gksdj bu izfroknh;ksa ds dCts esa n[kyankth dh dksf'k'k dh vksj dh tkus yxh rc mRiUu gqvk gksdj dkmaVj Dyse vof/k esas gSA"

So it is clear that suit was filed by the petitioner/plaintiff in the year 2011 and petitioner sent notice to the respondent in the year 2011 which was received by the respondent.

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7. In the case of T. Arivandandam Vs. T.V. Satyapal and another, 1977 (4) SCC 467, the Apex Court has held as under:-

"The trial Court must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he (Munsif) should exercise his power under Order VII rule11,C.P.C. taking care to see that the round mentioned therein fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Chapter X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first hearing so that bogus litigation can be hot- down at the earliest stage. The Penal Code is also resourceful enough to meet such men (Ch.XI) and must be triggered against them."

8. He also relied on the judgment in the case of Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) dead through L.Rs and others (2020) 7 SCC 366 wherein it has been held as under :-

"26. Articles 58 and 59 of the Schedule to the 1963 Act, prescribe the period of limitation for filing a suit where a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :

Description of Period of Time from which period suit limitation begins to run

58. To obtain any Three years When the right to sue first other declaration accrues.

59. To cancel or Three years When the facts entitling the set aside an plaintiff to have the instrument or instrument or decree decree or for the cancelled or set aside or the rescission of a contract rescinded first contract. become known to him.

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The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.

27. In Khatri Hotels Pvt. Ltd. &Anr. v. Union of India &Anr., this Court held that the use of the word 'first' between the words 'sue' and 'accrued', would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.

28. A three-Judge Bench of this Court in State of Punjab v. Gurdev Singh, held that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted. Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected."

9. He also relied on another judgment in the case of Sudhirdas Vs. United Church of D Canada India, Dhar Beneficiary and others (2020) 1 MPLJ 714 wherein it has been held as under: -

"10. The Court below, after hearing both the parties has rejected the said application on the ground that the grounds raised by the petitioner in the application are mixed question of law and facts and so far as the ground no.(i) regarding limitation is concerned, admittedly, plaintiffs in their plaint has stated that the sale-deed has been executed on 17/06/2009 and the suit has been filed in Year 2017 i.e. after more than 8 years while limitation for

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challenging the registered sale-deed is 3 years. Thus, on the basis of pleadings made by the petitioner in the plaint itself the suit is barred by limitation."

10. He relied on another judgment in the case of Anita Jain Vs. Dilip Kumar and another 2018 (1) MPLJ 554 wherein it has been held as under: -

This Court in the case of Leeladhar & Others Vs. Anwar Patel (Civil Revision No.275/2011 on 08/03/2016) has held as under:-

"6- The first ground raised in the application preferred under Order VII Rule 11 CPC was that the so called agreement was executed on 10/06/1985 and the land in question was sold to the defendants No.1, 2 and 3 in the year 1995 and the suit was filed in the year 2011 for declaring the sale deed as null and void. It was further stated that in light of the judgment delivered in the case of Suraj Lamp & Industires Pvt. Ltd. through its Director Vs. State of Haryana & Another reported in 2009(4) MPLJ 315, the registration of the document is a notice to all concerned and therefore, as the sale deeds were executed in the year 1995 and the civil suit was filed in the year 2011 for declaration in respect of cancellation of sale deeds, was hopelessly barred by limitation."

11. Heard learned counsel for both the parties and perused the record of the case. Order 7 Rule 11 of CPC reads as under:-

"Order 7 Rule 11 of CPC reads thus :-

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;

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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 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."

12. In Saleem Bhai and Ors. Vs. State of Maharastra and ors. 2003 (1) SCC 557 Civil Appeal No.8518/2002 decided on 17.12.2002, Apex Court held as thus :-

"Deciding application under Order 7 Rule 11, averment in the plaint can be seen not the plea taken in the written statement."

In the present case, according to the plaint it was found that respondent/plaintiff filed a suit for declaration and permanent injunction of the suit land. So, according to the verdict of Apex Court, it is settled law that at the time of deciding application under Order 7 Rule 11 of CPC, only plaint averments must be seen.

13. In the present case, respondent filed counter claim in the year 2018 i.e. after a lapse of 7 years. It is true that at the time of passing order on application under Order 7 Rule 11 of CPC, averments in plaint/counter claim can be seen, not the plea taken in written statement.

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14. In the present case, respondent/defendant averred in his counter claim that cause of action arises only when the plaintiff filed civil suit in the year 2011 and giving notice in the year 2011 so it is clear that he had knowledge about this year i.e. year 2011 and he filed counter claim after a lapse of 7 years. So it is clearly established that counter claims is barred by limitation. Therefore, trial court has committed error in holding that there is a need of taking evidence for consideration of limitation, therefore, impugned order passed by trial court is not correct in the eye of law and deserves to be set aside.

15. In view of the aforesaid discussion, the present revision is allowed and the impugned order passed by trial court is set aside. The application filed by the petitioner/plaintiff under Order 7 Rule 11 is allowed. The counter claim filed by the defendant being time barred is dismissed.

(HIRDESH) JUDGE N.R.