Madhya Pradesh High Court
Nabi Baksh vs The State Of Madhya Pradesh on 22 February, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 22 nd OF FEBRUARY, 2024
CIVIL REVISION No. 145 of 2024
BETWEEN:-
1. NABI BAKSH S/O BELI NAYATA OCCUPATION:
AGRICULTURE R/O KANADIA ROAD KHAJRANA
INDORE (MADHYA PRADESH)
2. SIKANDER S/O BELI NAYATA OCCUPATION:
AGRICULTURIST KANADIA ROAD KHAJRANA
INDORE (MADHYA PRADESH)
3. NOOR MOHAMMED S/O BELI NAYATA
OCCUPATION: AGRICULTURIST KANADIA ROAD
KHAJRANA INDORE (MADHYA PRADESH)
4. BELI MOHAMMED S/O BELI NAYATA
OCCUPATION: AGRICULTURIST KANADIA ROAD
KHAJRANA INDORE (MADHYA PRADESH)
5. BABU S/O BELI NAYATA OCCUPATION:
AGRICULTURIST KANADIA ROAD KHAJRANA
INDORE (MADHYA PRADESH)
6. RUSTAM S/O BELI NAYATA OCCUPATION:
AGRICULTURIST KANADIA ROAD KHAJRANA
INDORE (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI VISHAL BAHETI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
COLLECTOR, COLLECTOR OFFICE INDORE
(MADHYA PRADESH)
2. COMPETENT AUTHORITY URBAN LAND CEILING
INDORE THROUGH OFFICE IN CHARGE ANSHUL
KHARE SUB DIVISIONAL OFFICER JUNI INDORE
COLLECTOR OFFICE PARISAR MOTI TABELA
INDORE (MADHYA PRADESH)
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 2/23/2024
4:27:31 PM
2
3(I). BELI S/O HASANJI NAYATA THR LRS. SMT.
KHATUNBI W/O SHER MOHAMMED
OCCUPATION: AGRICULTURIST NAGORA TEHSIL
BADNAWAR DIST DHAR (MADHYA PRADESH)
3(II). BELI S/O HASANJI NAYATA THR LRS. SMT. BANO
BI W/O BABU PATEL OCCUPATION:
AGRICULTURIST JAMKHEDI TEHSIL MHOW
DIST. INDORE (MADHYA PRADESH)
3(III). BELI S/O HASANJI NAYATA THR LRS. SHERANBI
W/O ALI MOHAMMED OCCUPATION:
AGRICULTURIST DATTANA MATANA TEHSIL
UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SMT. VARSHA SINGH THAKUR - GOVT. ADVOCATE FOR
RESPONDENT/STATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
Learned counsel for the applicants submits that respondent No.3(i) to (iii)
are basically defendants with applicants before the trial Court and they are made
only proforma party and no relief has been sought against them, therefore, there
is no need to issue any notice to them.
2. With the consent of parties, matter is heard finally at motion hearing
stage.
3. The applicants have preferred this civil revision under Section 115 of
Code of Civil Procedure, 1908 (in short, 'CPC') being aggrieved by impugned
order dated 18/01/2024 passed by VI Civil Judge, Senior Division, Indore in
RCSA No.864-A/2022, whereby an application under Order VII Rule 11 read
with Section 11 and 151 of CPC filed by the applicants has been dismissed.
4. Brief facts of the case are that respondents No.1 and 2 have preferred
a suit before the trial Court on 13/04/2022 for cancellation of judgment and
decree dated 04/08/2007 passed in Civil Suit No.309-A/2002 against the
applicants by stating that respondents No.1 and 2 had obtained the said decree
by playing fraud that the father of the applicants has not authority to execute the
Hiba in respect of land in question. Thereafter, applicants have preferred an
application under Order VII Rule 11 read with Section 151 of CPC for
dismissal of the plaint by stating that the decree passed by the civil Court was
upheld up to the Hon'ble apex Court and Court has given specific finding with
regard to Hibanama. The decree was initially passed on 04/08/2007 and suit was
filed after a lapse of 15 years, which is apparently time barred. The main issue
regarding the execution of Hibanama has already been decided earlier, therefore,
there is no requirement to adjudicate the same again and it cannot be
adjudicated twice. Hence, there is no cause of action is available to file the
present suit. The trial Court after hearing both the parties dismissed the petition
vide order dated 18/01/2024. Being aggrieved by the same, applicants have filed
this civil revision.
5. Learned counsel for the applicants contended that the suit is apparently
time barred. Initially a decree has been passed in favour of the applicants on the
basis of Hibanama and the same has been upheld by the first as well as second
appellate Court and even by the Hon'ble apex Court, therefore, the judgment
and decree dated 04/08/2007 has attained finality. On that basis, applicants have
applied for mutation of their names in the revenue record and the same has been
rejected by the order passed by Tehsildar. The order passed by the Tehsildar
was challenged before the High Court by filing a Writ Petition No.10979/2022.
The said writ petition was allowed and the respondents were directed to carry
out the mutation in favour of the applicants, same has been upheld by the writ
appellate Court, then the respondents No.1 and 2 have challenged the said order
before the Hon'ble apex Court, but their SLP has also been dismissed. The trial
Court has dismissed the application merely on the ground that its a mix question
of law and fact and can be proved after recording the evidence, however, the
finding given by the trial Court is erroneous. Issue regarding title over the suit
land has been settled in the earlier two round of litigation and present case is
nothing but a abuse of process of law and also barred by principle of res
judicata. Hence, he prays that impugned order be set aside and application
under Order VII Rule 11 read with Section 11 and 151 of CPC be allowed and
the suit of respondents No.1 and 2 be dismissed with costs.
6. Per contra, learned counsel for the State / respondents No.1 and 2
opposes the prayer and prays for its rejection by submitting that the subsequent
suit was filed before the trial Court for cancellation of judgment and decree
dated 04/08/2007 by playing fraud that the father of the applicants has no
authority to execute the Hiba in respect of the land in question. It is a mix
question of law and facts, therefore, it cannot be decided without recording the
evidence. The impugned order passed by the trial Court is just and proper and
not deserve for any interference. Hence, this revision deserves to be dismissed.
7. Heard learned counsel for both the parties and perused the record with
due care.
8. From perusal of the record, it is crystal clear that applicants have
preferred a civil suit before the II Civil Judge, Class-I, Indore in the year 2002.
In that case, respondents No.1 and 2 State of Madhya Pradesh through District
Collector, Indore and Competent Authority, Urbain Land Ceiling, Indore were
impleaded as defendants No.2 and 3. They were also party before the first and
second appellate Court and even before the Hon'ble apex Court, thereafter,
applicants have preferred an application for mutating their names. In that second
round of litigation respondents No.1 and 2 were again made party in Writ
Petition No.10979/2022 by the applicants, thereafter, they were also a party to
the writ appeal and thereafter, matter has again traveled up to the Hon'ble Apex
Court. Hence, it is noteworthy that respondents No.1 and 2 were provided
sufficient opportunity of hearing at every stage after impleading them as party.
Therefore, fact regarding the aforesaid Hibanama was well within the knowledge
of respondents No.1 and 2. The issue of alleged Hibanama has already been
adjudicated by the different Courts up to the Hon'ble apex Court, therefore,
since 2007 the cause of action was always remained available for the
respondents No.1 and 2 for filing a civil suit and for setting aside the judgment
and decree passed against them in respect of the suit property.
9. Section 9 of the Limitation Act is quite clear that where once time has
begun to run, no subsequent disability or inability to institute a suit or make an
application to stop it. In the present case, the time has begun to run in the year
2007 when the civil Court has passed the decree and respondents No.1 and 2
have challenged the same up to the apex Court, but the present suit has been
filed after lapse of 18 years on the basis of the subsequent opinion given by the
Advocate General, therefore, finding regarding cause of action given by the trial
Court does not appear to be correct interpretation.
10. Respondents No.1 and 2 have sought relief of cancellation of
judgment and decree dated 04/08/2007, which was well within the knowledge of
respondents No.1 and 2 since the year 2007, but the present suit was filed on
13/04/2022 after 15 years from the date of earlier decree. As per Article 58 of
Part-III of Limitation Act, 1963, limitation to file a suit is 03 years from the date
when the right to sue first accrues. In the instant case, the cause of action for
filing the suit arose on 04/08/2007 when the trial Court has initially passed the
judgment and decree. There is nothing on record as to what has prevented the
respondents No.1 and 2 to challenge the judgment and decree passed on
04/08/2007 at the earlier stage, when the judgment and decree was passed and
any subsequent disability cannot give any fresh cause of action. Thus, the suit is
prima facie appears to be barred under Article 58 of the Limitation Act. Article
59 of the Limitation Act is not applicable in the instant case. The respondents
No.1 and 2 / plaintiffs have failed to discharge the onus of proof that the
present suit was filed within the period of limitation.
11. Hon'ble the apex Court in the case of Dahiben Vs. Arvindbhai
Kalyani reported in AIR 2020 SC 3310 has held that "a plaint can be
rejected by the Court if it does not mention a cause of action which is to be
taken by the plaintiff against the defendants. It is submitted that cause of
action has been mentioned in the Code of Civil Procedure. Without cause of
action, a Civil Suit cannot arise. The cause of action is necessary because it
discloses the facts that led the plaintiff to take such action."
12. The same principle has been laid down by the Hon'ble apex Court in
the case of Church of Christ Charitable Trust Vs. Ponniamman
Education Trust reported in AIR 2012 SC 3912. On the basis of the
aforesaid law laid down by the Hon'ble apex Court, it is clear that plaintiff does
not disclose real cause of action in the present suit and therefore, the suit is
liable to be dismissed under Order VII Rule 11(a) of CPC.
13. This Court in Para 8 and 10 of the judgment in the case of Neelam
Kumar Bachani & Anr. Vs. Bhishamlal reported in 2013 (4) MPLJ - 117
has held as under:-
"10. The Apex Court in the case of Sant Lal Mahton v. Kamla
Prasad, AIR 1951 SC 477 has categorically dealt with an
acknowledgment and an admission to that effect made in the
written statement. Even if the acknowledgment made in the reply
to the notice sent by the applicants is taken into consideration, it
will not mean that the same was in fact an acknowledgment of the
fact that right to sue on the strength of the cheque given in favour
of the applicants, was enlarged by the applicants. If that is not
there, the limitation would start only from the date of issuance
and encashment of the cheque for the purposes of filing of the
suit. In such a situation again the suit was filed beyond the
limitation and this aspect is not disputed by the non-applicant
even before this Court while making his submission. This being
so, for proving such facts which were specifically stated in the
plaint no evidence was required. It was to be seen by the Court
below that the suit filed by the non-applicant would be barred by
limitation and since there is no provision to enlarge limitation
for filing of such suit and no such power is vested in the Court,
the suit of the non-applicant was liable to be dismissed under the
provisions of Order 7, Rule 11 of Civil Procedure Code. Having
failed to appreciate such legal position, the Court below erred in
exercising the jurisdiction vested in it in appropriate manner and
in rejecting the application of the applicants under Order 7, Rule
11 of Civil Procedure Code."
14. The principle of res judicata is based on the need of giving a finality
to judicial decisions. What it says is that once a res judicata, it shall not be
adjudged again. Primarily it applies as between past litigation and future
litigation. When a matter, whether on a question of fact or a question of law has
been decided between two parties in one suit or proceeding and the decision is
final, neither party will be allowed in a future suit or proceeding between the
same parties to canvass the matter again. Rule of res judicata prevents the
parties to a judicial determination from litigating the same question over again.
When the proceedings have attained finality, parties are bound by the judgment
and are estopped from questioning it. [See: Subramanian Swamy Vs. State
of T.N. reported in (2014) 5 SCC 75]
15. The suit property and parties in former and in later suit are totally
identical. Subject matter, relief and issue raised therein are also identical and
earlier litigation was heard and finally decided and it has attained finality after
passing the last judgment of the Hon'ble apex Court on this issue. Both the
above suits are directly and substantially related with an issue in former case. It
is noteworthy that in the earlier round of litigation between both the parties,
Division Bench of this Court in Second Appeal No.456/2017 has observed as
under:-
"This Court would have straightway dismissed the appeal on the
ground of limitation alone, however, as it is a matter relating to
Urban Ceiling, the findings of the trial Court are also necessary
to be looked into.
Undisputedly, no notice for taking possession was issued at any
point of time to the plaintiffs and one single panchnama was
prepared while taking possession of four separate parcels of
land. Ex.P/16 the panchnama is on record. The panchnama has not
been signed by any independent witnesses, meaning thereby, at
no point of time possession was taken from the plaintiffs who
are children of Beli s/o Hasan Nayta. The another important
aspect of the case is that the land was gifted to the children by
way of 'Hibbanama' on 7/1/1975, it was notarised also on
12/2/1993 and by virtue of 'Hibbanama', they were certainly the
title holder of the property."
Hence, it could be said that the validity and execution of Hibanama was
not challenged by the plaintiff in the earlier round of litigation, hence, it cannot
become the foundation of consequent suit.
16. So far as the applicability of principle of res judicata as defined
under Section 11 of CPC is concerned, in the earlier suit and subsequent civil
suit, both the parties are similar and also related with the same cause of action.
From perusal of the averments made in the plaint ex facie do not disclose cause
of action or on a reading thereof the suit appears to be barred under the
principle of res judicata, therefore, it cannot be rejected at initial stage.
17. Thus, in the light of the aforesaid, this Court is of the considered
view that the trial Court has failed to exercise the jurisdiction vested in it by law,
by rejecting the application preferred by the applicants under Order 7 Rule 11
of CPC. That, the Apex Court in Para 22 and 24 of the case of Karim Bhai
Vs. State of Maharashtra & Ors. reported in I.L.R. (2009) M.P. 316 7 has
held as under:-
"(22.) Under Order VII Rule 11 CPC, a plaint shall be rejected
on the ground mentioned in the Rule, but the instances as given
cannot be regarded as exhaustive of all the cases, in which the
Court can reject the plaint or is limiting the inherent powers of
the Court in respect thereof. The provisions of Order VII Rule 11
CPC are procedural and they are enacted with an aim and object
to prevent vexatious and frivolous litigation. The Court is also
required to see that the vexatious and frivolous litigation should
not be allowed to proceed so as to kill the time of the court for
nothing.
(24.) I have gone through the reasonings assigned by the learned
Appellate Court dismissing the appeal and I find those reasonings
to be cogent. The decision of klockner (Supra) placed reliance by
the learned counsel for the appellants speaks that the powers
under Order VII Rule 11 (a), CPC should not be exercised only
on the ground that the plaintiff has no cause of action. According
to me, the said decision is not applicable because taking the
cumulative effect, apart from the reasonings, which have been
assigned by the learned First Appellate Court and by this Court
hereinabove, the plaint does not disclose a cause of action. Mere
writing that the plaintiff is having cause of action would in itself
is not sufficient to hold that the plaintiff has disclosed the cause
of action. If all the circumstances are taken into cumulative
effect, I am of the view that plaint does not disclose any cause of
action."
18. Thus, as per the aforesaid judgment, the order 7 Rule 11 of CPC is
not exhaustive and is merely illustrative and a suit if not maintainable, plaint can
be rejected on other grounds also.
19. In view of the aforesaid analysis, this Court finds that the instant civil
suit filed by the respondents Nos.1 and 2 is clearly barred by law and allowing
its continuance would be gross misuse of process of law, hence, the plaint
deserves to be rejected and consequently, the suit deserves to be dismissed.
20. Resultantly, the present civil revision stands allowed. The application
preferred under Order 7 Rule 11 read with Section 11 and 151 of Code of Civil
Procedure, 1908 stands allowed and the plaint filed by the respondents No.1
and 2 before the trial Court is hereby rejected. No order as to costs.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Tej
