Madhya Pradesh High Court
Smt. Madhuri vs Smt. Rekha on 8 August, 2024
Author: Hirdesh
Bench: Hirdesh
1 CR-843-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 8 th OF AUGUST, 2024
CIVIL REVISION No. 843 of 2023
SMT. MADHURI
Versus
SMT. REKHA AND OTHERS
Appearance:
Shri Sameer Anant Athawale, learned counsel for the petitioner.
Shri Abhimanyu Sanap, learned counsel for the Respondent [R-2].
ORDER
Petitioner has filed this revision being aggrieved by the impugned
order Annexure P/1 dated 27.09.2023 passed by 16th Civil Judge, Junior
Division, Inodre in civil suit no.RCS 926A/2022 whereby the trial court has
rejected the application filed by the petitioner under Order 7 Rule 11 CPC.
2. Brief facts of the case are that petitioner plaintiff filed a civil suit
for declaration that plaintiff is 50% owner of plot, right of parking vehicle on
the ground floor area, right of use of common water tank, water tap,
boarding etc and permanent injunction and also seeking declaration of sale
deed executed on 11.05.2017 null and void and not binding upon the
plaintiff.
3. Respondents filed their written statement along with counter
claim on 12.06.2023. Petitioner filed an application under Order 7 Rule 11
CPC and submitted that counter claim is barred by limitation so prayed for
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rejecting the counter claim. On the other hand respondents submitted their
reply.
4. After hearing counsel for both parties trial court rejected the
petitioner's application filed under Order 7 Rule 11 CPC. Being aggrieved
by the impugned order petitioner plaintiff has filed this revision and
submitted that trial court has exercised its jurisdiction with material
irregularities and illegalities and passed the impugned order by ignoring
material evidence on record. It has also failed to exercise its vested
jurisdiction because trial court has failed to consider that due to the counter
claim pecuniary limit of jurisdiction is exceeded. The sale deed was executed
in the year 2004 and defendant had knowledge about this sale deed so it is
the duty of the defendant to file suit or counter claim within three years but
he filed counter claim after lapse of three years for cancellation of sale deed
dated 15.12.2004. So prayed for allowing the revision and set aside the
impugned order and reject the counter claim filed by the respondents.
5. On the other hand, counsel for the respondents supported the
impugned order.
6. Heard learned counsel for the parties and perused the record.
7. The counter claim was filed by the respondent/defendant in which
in para-10 it is pleaded that on 22.09.2010 defendant no.1 executed an
agreement to sell with Mukesh Naik. Perusal of the agreement to sell
Annexure P/7 in which it is mentioned that the first floor was sold to the
plaintiff in the year 2004.
8. Order 7 Rule 11 of CPC reads as under:-
"11. Rejection of plaint-The plaint shall be rejected in the following cases-
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(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 written 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 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."
9. 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
has 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."
10. In the present case defendant filed an agreement to sell
Annexure P/7 in which it was mentioned that first floor was sold out in the
year 2004 to the petitioner Madhuri. It means that defendant had knowledge
about the above mentioned sale deed.
11. In the case of T.Arivandandam Vs. T.V. Satyapal and another
reported in (1977) 4 SCC 467 wherein it has been 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
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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 shot down at the earliest stage. The Penal Code is also resourceful enough to
meet such men (Ch.XI) and must be triggered against them."
12. 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 :
Period of
Description of suit Time from which period begins to run
limitation
58.To obtain any other Three
When the right to sue first accrues
declaration years
When the facts entitling the plaintiff to have
59.To cancell or set aside an
Three the instrument or decree cancelled or set aside
instrument or decree or for
years or the contract rescinded first become known
the rescission of a contract
to him.
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
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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."
13. 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 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."
14. 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."
15. In the present case perusal of the counter claim filed by the
defendant/respondent and documents it is undisputed that defendant was
aware about the sale deed executed in favour of the petitioner/plaintiff in the
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year 2004 but he had not filed any civil suit for cancellation of sale deed
executed in favour of the plaintiff in the year 2004. When plaintiff filed a
civil suit against the respondent then respondent/defendant filed counter
claim for cancellation of sale deed executed in favour of the plaintiff after
the lapse of three years. So this counter claim is clearly barred by
limitation. So in the considered opinion of this Court, trial court has
committed error in holding that counter claim is maintainable and not barred
by limitation. So the impugned order is not correct in the eye of law and
deserves to be set aside. In view of the above, the impugned order is set
aside and the application filed by the petitioner under Order 7 Rule 11 CPC
is allowed and the counter claim is rejected.
16. In the result, the revision petition is allowed.
(HIRDESH)
JUDGE
hk/
