Madhya Pradesh High Court
Mohan Rao vs Rajesh Chhugani on 12 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
A T IN D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF FEBRUARY, 2024
CIVIL REVISION No. 577 of 2023
BETWEEN:-
MOHAN RAO S/O KRISHNA RAO BAMBORE, AGED
ABOUT 60 YEARS, OCCUPATION: BUSINESS J-1,
VILASA, AMRIT NAGAR, MAIN ROAD,
GANPATIPURA, KONANKUNTE, J.P. NAGAR, 9TH
PHASE, BANGALORE (KARNATAKA)
.....PETITIONER
(SHRI MOHAN SHARMA, LEARNED COUNSEL FOR THE
PETITIONER) .
AND
RAJESH CHHUGANI S/O LATE MOHANSINGH
CHHUGANI, AGED ABOUT 39 YEARS, OCCUPATION:
SERVICE FLAT NO. 5, SUNDER APARTMENT,
SUBHASH NAGAR, UJJAN. PRESENT ADDRESS:-
LONDON (UK) (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SANJAY TIWARI, LEARNED COUNSEL FOR THE
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 2/17/2024
4:35:07 PM
2
RESPONDENT).
-----------------------------------------------------------------------------------
This revision coming on for orders this day, the court passed
the following:
ORDER
This civil revision has been filed by the defendant under
section 115 of the Code of Civil Procedure, 1908 (for short 'the
CPC') against the order dated 14.02.2023 passed in RCSB
No.60/2021 by IInd District Judge, Ujjain whereby the application
under Order 7 Rule 11 CPC filed by the petitioner/defendant has
been rejected by the trial court.
2. Brief facts of the case are that respondent/plaintiff has
preferred a civil suit for recovery of Rs.1,41,83,000/- against the
petitioner/defendant on 13.08.2021 before Xth District Judge,
Ujjain. It was averred in the plaint that plaintiff being son-in-law of
defendant extended loan facility of Rs.50 lakhs on different dates
commencing from 26.05.2015 to 23.11.2016 at the rate of 12%
interest. It was also averred that only Rs.30 lakhs was returned in
November, 2019 by defendant to the plaintiff and under pressure the
plaintiff further extended loan facility of Rs.50 lakhs on different
dates commencing from 04.04.2019 to 19.05.2000 at the rate of 12%
interest. The said civil suit was preferred in the court of Ujjain
whereas at the time of alleged lending money, the
respondent/plaintiff is said to be residing in UK. No where it has
been stated in the plaint that transaction has taken place in Ujjain or
any cause of action has arisen at Ujjain, in such circumstances it was
apparent that suit was without jurisdiction. The petitioner/defendant
preferred an application under Order 7 Rule 11 CPC raising the issue
of cause of action, barred by limitation and also jurisdiction. The
trial court on 14.02.2023 cursorily examined the application and
dismissed the application under Order 7 Rule 11 CPC. The trial
court has not examined the issue of cause of action and the issue of
limitation and also jurisdiction.
3. Being aggrieved by the impugned order, petitioner has filed
this revision on the ground that trial court is required to consider the
objection with regard to the jurisdiction because it goes to the root of
the matter and it was prima facie proved from the plaintiff's own
plaint that at the time of alleged money lending the plaintiff was not
residing in India and no transaction had taken place at Ujjain and
defendant is also resident of Bangalore, Karnataka. In such
circumstances the application was liable to be allowed and civil suit
was liable to be dismissed for want of jurisdiction. He further
submitted that plaint was barred by limitation because the
transaction of alleged money lending is said to be taken place in the
year 2015 whereas the suit was filed in the year 2021. The plaint
was clearly barred by limitation so it is clear that no cause of action
accrued to the plaintiff but trial court has committed an error in law
in not dismissing the plaint on the ground of jurisdiction, want of
cause of action and limitation. So prayed for allowing the petition
and setting aside the impugned order of the trial court and dismiss
the suit. In support of contentions, learned counsel has placed
reliance over the judgments in the case of K.Akbar Ali vs. K.Umar
Khan and others - (2021) 14 SCC 51 & Tirumala Tirupati
Devasthanams and another vs. Thallappaka Ananthacharyulu
and others - (2003) 8 SCC 134.
4. On the other hand, learned counsel for the respondent has
supported the impugned order and prayed for rejection of the
revision petition.
5. Heard learned counsel for the parties and perused the
documents produced by both the parties.
6. Order 7 Rule 11 CPC is reproduced as under:
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 recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional
nature from 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.]
7. In Saleem Bhai and others vs. State of Maharashtra and
others - (2003) 1 SCC 557 the apex Court has held that while
deciding the application under order 7 Rule 11 CPC the averments in
the plaint can be seen and not the plea in the written statement.
8. Learned counsel for the petitioner submitted that trial court has
no territorial jurisdiction to hear the present suit filed before it.
Section 20 of the CPC gives territorial jurisdiction to hear the suit
which reads as under:
20. Other suits to be instituted where defendants reside
or cause of action arises.--Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are
more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at
the time of the commencement of the suit, actually and
voluntarily resides, or carries on business, or personally
works for gain, provided that in such case either the leave of
the Court is given, or the defendants who do not reside, or
carry on business, or personally works for gain, as aforesaid,
acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.
9. Considering the plaint averments (Annexure P/1) it is found
that plaintiff's permanent address is flat No.5, Sunder Apartment,
Subhash Nagar, Ujjain. In para-6 he pleaded that he transferred the
amount from his ICICI bank, Ujjain Branch. So prima facie,
considering the pleading of the plaint it is clearly established that
cause of action arises in Ujjain and the Ujjain Court has the
territorial jurisdiction to try the suit.
10. Learned counsel submitted that the suit was barred by
limitation. In the case of Surjit Kaur Gill & another vs. Adarsh
Kaur Gill and another- (2014) 16 SCC 125, the Apex Court has
held that the issue limitation is always a mixed question of law and
fact and, therefore, it could not be held that no case was made out for
proceeding for trial. Considering the plaint averments at the stage of
Order 7 Rule 11 CPC it cannot be held that the suit was prima facie
time barred.
11. In view of the foregoing discussion, in the considered opinion
of this Court, trial court has not committed any error in rejecting the
application under Order 7 Rule 11 CPC, therefore, there is no need
to interfere in the impugned order. The revision petition has no
substance. Accordingly, the petition is dismissed.
(HIRDESH)
JUDGE
hk/
