Madhya Pradesh High Court
Smt. Manjula Chordiya vs Bharat Chordiya on 6 March, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 6th OF MARCH, 2024
CIVIL REVISION No. 115 of 2022
BETWEEN:-
1. SMT. MANJULA CHORDIYA W/O ASHOK
KUMAR, AGED ABOUT 65 YEARS,
OCCUPATION: BUSINESS R/O 80/4
VALLABH NAGAR (MADHYA PRADESH)
2. ASHOK KUMAR CHORDIYA S/O
SAMRATHMAL JI CHORDIYA, AGED
ABOUT 68 YEARS, OCCUPATION: VYAPAR
R/O 80/4 VALLABH NAGAR (MADHYA
PRADESH)
.....APPLICANTS
(BY SHRI BHARAT I. MEHTA - SENIOR ADVOCATE WITH SHRI JITENDRA
BHARAT MEHTA - ADVOCATE)
AND
1. BHARAT CHORDIYA S/O
RAMESHCHANDRA CHORDIYA, AGED
ABOUT 36 YEARS, OCCUPATION: BUSINESS
R/O 121 CHANDNI CHOWK (MADHYA
PRADESH)
2. STATE OF MADHYA PRADESH THROUGH
COLLECTOR, COLLECTORATE OFFICE,
RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAMKRISHNA SHASTRI - ADVOCATE)
This revision coming on for admission this day, the court passed
the following:
ORDER
The applicants have preferred this civil revision under Section 115
of the Code of Civil Procedure, 1908 (in short, 'CPC') being aggrieved
by the impugned order dated 12/10/2021 passed by the II Civil Judge,
Senior Division, Ratlam (M.P.) in Civil Suit No.RCS-A/157/2021,
whereby an application under Order VII Rule 11 read with Section 151
of CPC filed by the applicants/defendants No.1 and 2 has been
dismissed.
02. The brief facts of the case are that plaintiff/respondent No.1 has
filed a suit for declaration of title, setting aside and declaring both the
the gift deeds null and void and for grant of mandatory and perpetual
injunction by stating that plaintiff is the owner of land bearing survey
No.550 area 0.470 hectare situated at Village Bibdod and survey
No.251/1 area 0.176 hectare, survey No.251/2 area 0.115 hectare, survey
No.251/3 area 0.018 hectare, survey No.251/4 area 0.070 hectare, survey
No.251/5 area 0.101 hectare situated at Village Banjali. There was a
property dispute between the parties. For the purpose of dissolving the
dispute between them, as per their settlement, plaintiff has executed two
gift deeds in respect of the suit land situated at Village Bibdod and
Banjali in favour of the defendants No.1 and 2, but actual possession
remained with the plaintiff only. Allegedly it was a criminal conspiracy
and fraud, which was committed by the applicants/defendants No.1 and
2, therefore, the plaintiff filed the civil suit.
03. During the pendency of the suit applicants/defendants No.1 and 2
filed an application under Order VII Rule 11 read with Section 151 of
CPC by stating that civil suit filed for declaration of both the gift deeds
as null and void has been filed after a lapse of about three years of
executing the alleged gift deeds, therefore, the suit is barred by time and
no cause of action is available to the plaintiff and suit deserves to be
dismissed.
04. The trial Court after hearing both the parties dismissed the
aforesaid application filed by the applicants by holding that question of
limitation is a mixed question of law and fact, hence, the suit cannot be
rejected at this stage under Order VII Rule 11 of CPC. Being aggrieved
by the aforesaid, applicants/defendants No.1 and 2 have preferred this
civil revision.
05. Learned senior counsel for the applicants/defendants No.1 and 2
submits that learned Court below has failed to appreciate the provisions
of Order VII Rule 11 of CPC. Court below has also failed to hold that no
cause of action is arise. The trial Court has failed to consider that the
civil suit is exclusively barred by limitation. Trial Court has also ignored
the objection raised by the applicants regarding the suit valuation and the
payment of court fees. The plaintiff has even not properly valued the suit
and court fees was not paid accordingly, therefore, the suit filed by the
plaintiff is not maintainable. The impugned order passed by the trial
Court is bad in law and is not sustainable. Hence, he prays that
impugned order be set aside and the suit filed by the plaintiff be
dismissed with costs.
06. Per contra, learned counsel for the respondent No.1/plaintiff
opposes the prayer and prays for its rejection by submitting that the
applicants/defendants No.1 and 2 have played fraud with the respondent
No.1. Limitation is a mix question of law and fact, 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, the civil revision deserves to be dismissed.
07. Learned counsel for the respondent No.2/defendant No.3 State
submits that the Court is free to pass an appropriate order as may be
required.
08. Heard learned counsel for the parties at length and perused the
entire record with due care.
09. The trial Court has dismissed the application filed on behalf of the
petitioner under order 7 Rule 11 of CPC. On the basis of that, the matter
should be adjudicated on the basis of the pleadings filed by the plaintiff.
In the instant case only a short question arises for consideration is
whether an application under Order 7 Rule 11 of CPC ought to be
decided on the allegations in the plaint and filing of the written statement
and evidence on merit is irrelevant and unnecessary.
10. In such circumstances, Order VII Rule 11 C.P.C. reads 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 by 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, failed 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 great injustice to the plaintiff."
11. A perusal of Order VII Rule 11 of CPC makes it clear that the
relevant facts which need to be looked into for deciding an application
thereunder are the averments in the plaint. The trial court can exercise
the power under Order VII Rule 11 CPC at any stage of the suit i.e.
before registering the plaint or after issuing summons to the defendant at
any time before the conclusion of the trial. For the purposes of deciding
an application under clauses (a) and (d) of Rule 11 of Order VII C.P.C.
the averments in the plaint are germane; the pleas taken by the defendant
in the written statement would be wholly irrelevant at that stage. The
order, therefore, suffers from non exercising of the jurisdiction vested in
the court as well as procedural irregularity. The High Court, however,
did not advert to these aspects.
12. In the case of Sapan Sukhdeo Sable and others Vs. Assistant
Charity Commissioner and others reported in (2004) 3 SCC 137,
Hon'ble Apex Court has observed as under:
"Rule 11 of Order VII lays down an
independent remedy made available to the
defendant to challenge the maintainability of the
suit itself, irrespective of his right to contest the
same on merits. The law ostensibly does not
contemplate at any stage when the objections
can be raised, and also does not say in express
terms about the filing of a written statement.
Instead, the word 'shall' is used clearly implying
thereby that it casts a duty on the Court to
perform its obligations in rejecting the plaint
when the same is hit by any of the infirmities
provided in the four clauses of Rule 11, even
without intervention of the defendant. In any
event, rejection of the plaint under Rule 11 does
not preclude the plaintiffs from presenting a
fresh plaint in terms of Rule 13."
In similar situation, Hon'ble Supreme Court in the case of Om
Agrawal Vs. Haryana Financial Corporation and others reported in
2015(4) MPLJ 495 has observed as under :
"22. An application for rejection of the
plaint can be filed, if the allegations made in the
plaint taken to be correct as a whole on its face
value show the suit to be barred by any law. The
question as to whether a suit is barred by any
law or not would always depend upon the facts
and circumstances of each case. However, for
deciding this question, only the averments made
in the plaint are relevant."
13. In exercise of powers under this provision, the Court would
determine if the assertions made in the plaint are contrary to statutory
law, or judicial dicta, for deciding whether a case for rejecting the plaint
at the threshold is made out. The test for exercising the power under
Order VII Rule 11 is that if the averments made in the plaint are taken in
entirety, in conjunction with the documents relied upon, would the same
result in a decree being passed.
14. This Court in para 8 and 10 of the judgment in the case of Neelam
Kumar Bachani and Anr. Vs. Bhishamlal reported in 2013(4) MPLJ
117, has held as under:-
"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."
15. In the case of Hardesh Ores Pvt. Ltd vs M/S. Hede And
Company reported in 2007 (5) SCC 614, Hon'ble the apex Court held
that it not permissible to cull out a sentence or a passage and to read it
out of the context in isolation. Although it is the substance and not
merely the form that has to be looked into, the pleading has to be
constructed as it stands without addition or subtraction of words. If the
allegations in the plaint prima facie show a cause of action, the Court
cannot embark upon an enquiry whether the allegations are true in fact.
Therefore, it is crystal clear that if from a meaningful reading of the
plaint, it is found that the suit is manifestly vexatious and without any
merit, and does not disclose a right to sue, the Court would be justified
in exercising the power under Order VII Rule 11 of CPC.
16. Hon'ble the apex Court in the case of Dahiben Vs. Arvindbhai
Kalyanji Bhanusali (Gajra) Dead through Legal Representatives
and Others reported in (2020) 7 SCC 366, has held that powers under
Order VII Rule 11 of CPC must be exercised by the Court at any stage of
the suit either before registering the plaint, or after issuing summons to
the defendant, or before conclusion of the trial.
17. In the instant case, respondents No.1/plaintiff's main plea is that
the applicants have committed fraud with him, but it is noteworthy that
plaintiff himself is the executor of the said gift deeds, which were
executed in the year 2016, therefore, the aforesaid fact was known to the
plaintiff since the execution of the gift deeds i.e. in the year 2016, but
soon after the execution of the gift deeds plaintiff has not filed any suit
against the appellants/defendants No.1 and 2 for setting aside the
aforesaid gift deeds and for declaring them as null and void, since the
present civil suit has been filed on 06/07/2021. As per the Article 58 of
the Limitation Act, the period of limitation is three years and if a suit is
based upon multiple causes of action, the period of limitation will begin
to run from the date when the right to sue first accrues. The successive
violation of the right will not give rise to fresh cause of action and suit is
liable to be dismissed from the day when the right to sue first accrued.
18. It is also observed that averments made in the instant plaint, are
cleverly drafted to bring suit within limitation and false plea of alleged
compromise in a suit filed by plaintiff's brother is raised in the plaint. It
is alleged that as per the terms of compromise with plaintiff's brother,
gift deeds were executed by the plaintiff in favour of the defendants
No.1 and 2. The plaintiff did not file any relevant document in support of
alleged compromise. From bare reading of the plaint, it is found that
plaint is manifestly vexatious and meritless and not disclosing a clear
right to sue, therefore, the trial Court should exercise its power under
Order VII Rule 11 of CPC to ascertain the materials for cause of action.
19. In the case of N. V. Srinivasa Murthy Vs. Mariyamma reported
in (2005) 5 SCC 548, the apex Court has held that considering the
averments in the plaint, it it is found that the suit is clearly barred by law
of limitation, the same can be rejected in exercise of powers under Order
VII Rule 11(d) of CPC.
20. Hon'ble the apex Court in the case of C. S. Ramaswamy Vs. V. K.
Senthil & Ors. reported in AIR 2022 SC 4724, has held that merely
stating that fraud has been played is not enough. The allegation of fraud
must be specifically averred in the plaint, otherwise merely by using the
word 'fraud', the plaintiffs would try to get the suits within the limitation,
which otherwise may be barred by time.
21. Therefore, it is a settled position of law that the averments and the
allegations made in the instant plaint are required to be considered at the
time of deciding the application under Order VII Rule 11 CPC is
accepted, in that case also by such vague allegations with respect to the
date of knowledge, the plaintiff cannot be permitted to challenge the
documents after a period of 05 years. By such a clever drafting and using
the word "fraud", the plaintiff has tried to bring the suit within the period
of limitation invoking Section 17 of the limitation Act.
22. Hon'ble the apex Court in the case of Raghwendra Sharan Singh
Vs. Ram Prasanna Singh (Dead) by LRs, has held that suit for
declaration of gift deed in favour of defendant is shame transaction and
is not binding. Suit filed after more than 22 years of execution of
registered gift deed and plaintiff is not praying for any declaration to set
aside gift deed as in that case the suit would be clearly barred by
limitation under Article 59 of the Limitation Act. If the averments in the
plaint are cleverly drafted to bring suit within period of limitation, then
the plaint would be liable to be rejected.
23. Thus, in view of the aforesaid law laid down by Hon'ble the apex
Court and for the reasons cited above, this Court is of the considered
opinion that the provision of Order VII Rule 11 of CPC is not exhaustive
and is merely illustrative and in a suit if not maintainable, plaint can be
rejected on other grounds also.
24. In view of the aforesaid, the civil suit filed by the respondent
No.1/plaintiff is hopelessly barred by law and allowing its continuance
would be gross misuse of process of law. Hence, the plaint deserves to
be rejected, but the trial Court has erred in not exercising the power
under Order VII Rule 11 of CPC. For the reasons cited above, impugned
order passed by the trial Court cannot be sustained and it deserves to be
quashed.
25. Resultantly, the present civil revision is allowed. The application
preferred under Order VII Rule 11 read with Section 151 of CPC stands
allowed and the plaint bearing No. RCS-A/157/2021 is hereby rejected.
No order as to costs.
Certified copy as per rules.
(ANIL VERMA)
J U D G E
Tej
