Madhya Pradesh High Court
Bharat Singh vs Dwarkadish Laddha on 3 May, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 3rd OF MAY, 2024
CIVIL REVISION No. 819 of 2019
BETWEEN:-
BHARAT SINGH S/O SHRI JASWANT SINGH,
AGED ABOUT 70 YEARS, OCCUPATION:
AGRICULTURE R/O GADI NARSINGHPURA
JAORA, DISTRICT RATLAM (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY BAGADIA -SENIOR ADVOCATE WITH SHRI GAJENDRA SINGH
CHOUHAN- ADVOCATE).
AND
DWARKADISH LADDHA S/O LATE SHRI
RAMKARAN LADDHA, AGED ABOUT 50 YEARS,
OCCUPATION: AGRICULTURE VILLAGE
BADAVADA TEHSIL JAORA DISTRICT RATLAM
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RISHIRAJ TRIVEDI - ADVOCATE))
-----------------------------------------------------------------------------------------------
This revision coming on for orders this day, the court passed the
following:
ORDER
This Civil Revision has been filed by the petitioner/defendant being
aggrieved by the order dated 14.10.2019 passed by learned Civil Judge, Class-
I, Jaora, District Ratlam, Indore in C.S.No.2B/2018 whereby the application
under Order 7 Rule 11 of CPC filed by the petitioner has been rejected.
2. The brief facts of the case are that the respondent/plaintiff has
filed a civil suit against the petitioner/defendant on the ground that he happens
to be the son of late Shri Ram Karan Laddha and that Shri Ram Karan Laddha
expired on 31.12.2017. It is further submitted that during his life time Shri
Ram Karan Laddha executed a will in favour of the present respondent/plaintiff
and in this will Shri Ram Karan Laddha said to have mentioned about the
execution of some oral agreement between the petitioner/defendant and
respondent/plaintiff. It is further pleaded that petitioner/defendant owns a piece
of land in Gram Sujawada and for the purposes of selling the plots of the
colony and their development, the petitioner/defendant entered into an oral
agreement with Shri Ram Karan Laddha thereby promising him 3% of the
remuneration received against the sale of the plots. It is further stated that the
petitioner/defendant executed a registered power of attorney in favour of Shri
Ram Karan Laddha for sale of plot nos.19, 20 and 25. The power of attorney
was executed on 01.01.1993. The sale deeds of these three plots were executed
on 18.01.1993,24.10.1994 and 27.03.1997. It is further pleaded that after the
death of Shri Ram Karan Laddha, the respondent/plaintiff stands to recover
Rs.22,17,360 as 3% commission of the sale of the plots from the
petitioner/defendant.
3. The defendant filed written statement and thereafter application
under Order 7 Rule 11 of CPC and submitted that the suit is not maintainable
because it was filed beyond the period of three years from the date of
agreement and also that if three registries executed by the father of the
respondent/plaintiff are to be taken into consideration, even then the suit is
barred by time.
4. The respondent/plaintiff filed reply to the application under Order
7 Rule 11 of CPC. The trial Court by the impugned order dated 14.10.2019 has
dismissed the application of the petitioner/defendant and stated that if the
averments of the plaint are taken into consideration, the period of limitation has
not expired.
5. Being aggrieved by the impugned order, the petitioner has filed
this revision petition on the ground that impugned order passed by the trial
Court is perverse, contrary to law and facts and circumstances. The trial Court
has failed to properly and legally exercise its jurisdiction vested in it by law. It
appears clearly by perusal of the plaint that the suit is barred by limitation and
trial Court committed gross error of law in dismissing the application filed
under Order 7 Rule 11 of CPC. Hence, prays for allowing the revision by
setting aside the impugned order and consequently the plaint may be rejected
and the suit filed by respondent no.1 be dismissed.
6. On the other hand, learned counsel for the respondent/plaintiff
opposes the revision petition and prays for its rejection.
7. Learned counsel for the petitioner has relied on the judgment of
the Apex Court in the case of Khatri Hotels Private Limited and another
Vs. Union of India and another reported in (2011) 9 SCC 126 wherein it has
been held as under:-
"30. While enacting Article 58 of the 1963 Act, the
legislature has designedly made a departure from the
language of Article 120 of the 1908 Act. The word `first' has
been used between the words `sue' and `accrued'. This
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. To put it differently,
successive violation of the right will not give rise to fresh
cause and the suit will be liable to be dismissed if it is
beyond the period of limitation counted from the day when
the right to sue first accrued."
8. On the other hand, learned counsel for the respondent has relied
on the judgment of the Apex Court in the case of Balasaria Construction
Private Limited Vs. Hanuman Seva Trust and others reported in (2006) 5
SCC 658 wherein it has been held as under:-
"10. After hearing counsel for the parties, going through
the plaint, application under Order 7 Rule 11(d) CPC and
the judgments of the trial court and the High Court, we are
of the opinion that the present suit could not be dismissed as
barred by limitation without proper pleadings, framing of an
issue of limitation and taking of evidence. Question of
limitation is a mixed question of law and fact. Ex facie in
the present case on the reading of the plaint it cannot be held
that the suit is barred by time. The findings recorded by the
High Court touching upon the merits of the dispute are set
aside but the conclusion arrived at by the High Court is
affirmed. We agree with the view taken by the trial court
that a plaint cannot be rejected under Order 7 Rule 11(d) of
the Code of Civil Procedure."
9. 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;
(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."
10. 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."
11. In the case of T.Arivandandam Vs. T.V. Satyapal and another
reported in (1977) 4 SCC 467 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
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 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 suit Period of limitation Time from which period
begins to run
58. To obtain any Three years When the right to sue first
other declaration accrues.
59. To cancel or set Three years When the facts entitling the
aside an instrument plaintiff to have the
or decree or for the instrument or decree
rescission of a cancelled or set aside or the
contract. contract rescinded first
become known 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
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, respondent/plaintiff filed a civil suit for
recovery of money and in para 13 of the plaint it is mentioned that the cause of
action arose for the first time on 12.06.1989. In the case of Khatri Hotels
Private Limited (Supra) the Apex Court held that the use of 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. In the present case, according to the
plaint averments first cause of action accrued on 12.06.1989 and suit was filed
in the year 2018, after a lapse of 29 years. So, this suit is clearly barred by
limitation.
16. Hence, in the considered opinion of this Court there is no need to
take any evidence in this regard. It is the duty of the respondent/plaintiff to file
civil suit for recovery of money within three years from the first cause of
action arose, but he was unable to file the civil suit within the period of
limitation. So, it is clearly established by naked eye that suit is barred by
limitation. The trial Court has committed error in holding that there is need to
take evidence for consideration of limitation. Therefore, the impugned order
passed by the trial Court is not correct in the eye of law and deserves to be set
aside.
17. In view of the aforesaid discussions, the revision is allowed. The
impugned order passed by the trial Court is set aside and the application filed
by the petitioner under Order 7 Rule 11 of CPC is allowed and plaint is
rejected. The suit filed by respondent is time barred and is dismissed.
(HIRDESH)
JUDGE
RJ
