1. M/s. Kalinga Utkal
Buildwell Private Ltd.
Having its Registered Office at
Near Car Fashion
Mani Sahoo Chhak
Buxi Bazar, Cuttack
Represented through its
Director, Mukesh Jain
Aged about 30 years
Son of Madan Jain
Resident of Jivendra
A-52, Sastri Nagar, Jodhpur
Rajasthan.
2. Mukesh Jain,
Aged about 30 years,
Son of Madan Jain
Resident of Jivendra
A-52, Sastri Nagar, Jodhpur
Rajasthan. ... Petitioners.
1. Orissa Textiles and Steels
Employees‟ Union
Naya Bazar, Cuttack
A Registered Trade Union
Represented by its General Secretary
Sri Hrudananda Pattanayak
Aged about 58 years
Son of Late Dhruba Charan Pattanayak
At: Tinigharia, P.O.: Naya Bazar
P.S.: Madhupatna
District: Cuttack.
2. Orissa Textiles and Steels Ltd.,
Having its Registered Office
At: Naya Bazar, Cuttack
Represented through its
Additional Director
Siba Prasad Mishra
At/P.O.: Nayabazar
P.S.: Madhupatna, Cuttack.
3. Kalinga Textile Corporation,
Represented by its
Partner Siba Prasad Mishra
Aged about 53 years
Son of Late Raghunath Mishra
Resident of HIG-II-C-62
Housing Board Colony
Baramunda
Bhubaneswar - 3. ... Opposite Parties.
(b) A declaration that Mutation Record-of-Right bearing
Khata No.71 and Khata No.659 of Mouza: Nuapada
under Cuttack Sadar Police Station of District
Cuttack are void documents;
(c) The defendants be permanently restrained not to
come upon the suit land, not to disturb the peaceful
possession of the plaintiff, not to change the nature
and character of the suit, not to transfer the suit
land in favour of outsiders;
(d) A decree be passed for cost of the suit in favour of
the plaintiffs;
(e) Any other relief/reliefs as may be deemed fit in
favour of the plaintiffs.‖
2.1. A chart showing events along with written note of
submission has come to be furnished to this Court on
behalf of the opposite parties on 11.04.2023 reveals the
following factual position leading to filing of aforesaid
suit, maintainability of which is the subject matter of
this civil revision petition:
d. On 10.01.2006, the Union filed suit registered as
CS No.12 of 2006 before the 1st Civil Judge, Senior
Division, Cuttack for declaration and permanent
injunction as the machinery, materials and &c.
were tried to be sold by the Management with
separate application for temporary injunction.
e. Registered Sale Deed Nos.517 and 518 were
executed on 31.01.2006 transferring the following
properties by the Odisha Textiles and Steels Ltd.
(opposite party No.2) and the Kalinga Textile
Corporation (opposite party No.3) in favour of the
petitioners, which are subject matter of suit in CS
No.1039 of 2017 out of which the present revision
petition arises. Schedules of properties as reflected
in the plaint enclosed as Annexure-2 to the revision
petition are extracted herein below:
h. However, an Order dated 25.08.2006 came to be
passed by this Court in a writ petition, bearing
W.P.(C) No.5479 of 2006, in the context of Order
dated 17.02.2006 passed in the petition under
Order XXXIX, Rules 1 and 2 in CS No.12 of 2006,
CPC by the Civil Judge, Senior Division permitting
transfer of the scrap machineries and materials
giving liberty to the Management of the Orissa
Textiles and Steels Ltd. to sell machineries and
materials under the supervision of the learned trial
Court and direction was issued for deposit of the
sale proceeds with the trial Court. Relevant portion
of said Order reads as follows:
6. Question as to whether the suit is maintainable
with such a prayer or not and as to whether
the suit has been undervalued or not are
matters to be decided in the suit. Undisputedly,
before closure of the factory there were
employees in the same and they claim of
payment of some statutory dues like wages,
bonus, etc. Question, therefore, arises as to
how the interest of the employees can be
protected. The one way to protect the interest of
the employees is to restrain the opposite
parties from selling away the machineries and
materials to that in the event ultimately it is
found that the suit is maintainable and the
employees are entitled to some dues, the same
can be recovered by selling away the
properties. The difficulty in such a direction is
that it will take some time for disposal of the
suit and likely any decree passed in the suit
may be challenged in appeal if the materials
are not sold now the prices will go down after
few years and by the time it is decided by the
court or otherwise to sell the properties, it may
not fetch the price that it may fetch now. In that
event, there is no guarantee that the amount
ultimately found due to the employees can be
recovered by selling away the properties of the
company. On consideration of the above, I am
of the view that the best course open for the
present is to allow the machineries and
materials to be sold and the sale proceeds to
be deposited in the trial court so that at the end
of the trial necessary orders can be passed
regarding release of the same.
7. I, therefore, modify the orders passed by the
courts below and direct that the opposite
parties be permitted to sell the machineries and
materials under observation of the trial court
and the entire sale proceeds be deposited
before the trial court which shall be kept in
fixed deposit till disposal of the suit. Depending
on the decision taken in the suit, orders shall
be passed for release of the said amount.
petition, being RVWPET No.118 of 2006, came to be
passed directing the petitioner to file an application
before the learned trial Court seeking direction to
the Management of the Orissa Textiles and Steels
Ltd. to deposit the entire cost of the machineries
and materials so also the landed properties already
sold vide Registered Sale Deed Nos.517 and 518,
dated 31.01.2006. Order dated 11.12.2006 passed
in RVWPET No.118 of 2006 of this Court reads
thus:
Thereafter, the opposite parties invested huge
amount to sub-plot the suit land and to sell the
same to others. So, the plaintiff/petitioner filed
the present petition to restrain the opposite
parties from transferring the said land to any
other persons till the settlement of statutory
dues of the employees of the defendant's
establishment. It appears from the record that
during pendency of the suit the present
petitioner also filed Misc. Case bearing No.
CMA 14/07 against the opposite parties under
Section 151 of C.P.C. praying to direct the
opposite party No. 6, Siba Prasad Mishra, to
deposit the entire sale proceeds of the suit
property in the Court and to keep the same in
the custody of the Court till disposal of the suit.
Prior to that the petitioner also filed I.A. 7/06
under Order XXXIX, Rule 1 and 2 C.P.C. which
has been disposed of by this Court vide order
dated 17.11.2006 directing the opposite parties
to transfer and shift the scrap machineries and
materials after furnishing the security in the
shape of bank guarantee to the tune of an
amount equal to the statutory dues of the
But, the said order was modified by the
Hon'ble High Court of Orissa vide Order dated
25.08.2006 in W.P.(C) No. 5479/06 directing
the opposite parties to sell the machineries and
materials under observation of the trial court
and to deposit the entire sale proceeds before
the trial Court. Subsequently, the opposite
parties transferred and sold away the
landed properties. So, the petitioner filed a
review petition before the Hon'ble High Court
vide Review Petition No. 118/06 and the
Hon'ble High Court vide its order dated
11.12.2006 directed the petitioner to file an
application before the trial Court seeking
direction to the opposite parties. To deposit
the entire cost of the machineries and
materials so also the landed properties
already sold by them. Accordingly, the
petitioner filed a petition to direct the opposite
party No. 6 to deposit the entire sale proceeds
of the suit property in the Court and to keep the
same under the custody of the trial court till
disposal of the suit. The said petition was
disposed of by this Court on 30.11.2007
directing the opposite party No.6 who is the
custodian of the entire sale proceeds to deposit
the same in the Court and to keep the same
under custody of the trial Court till disposal of
the suit.
5. The present opposite party is a lis
pendens purchaser of the suit property. He
has purchased the same from defendant
No.6, Shiba Prasad Mishra, under a
Registered Sale Deed after payment of full
consideration amount. As such he became
the original owner of the suit property
since the date of purchase. He is also
possessing the same on his right, title, interest.
He is not a party in the original suit. The
plaintiff has no claim against him in the
original suit. As the plaintiff has filed the suit
against the defendants for a declaration that
the outstanding statutory dues of the
employees under the establishment of
defendant No.1 and 2 will be recovered from
the properties of their establishment and for
temporary injunction against them from
transferring the suit properties so long as the
dues of the employees are not settled. But
during pendency of the suit defendant
No.6 sold the same to the present O.P.
after receiving the consideration amount
under a Registered Sale Deed. So, the O.P.
is no way liable for payment of the statutory
dues of the employees of defendant No. 1 and
2's establishment. In case, the plaintiff will
succeed in the suit, the defendants including
the seller of the suit properties (defendant No.6)
will become liable for payment of the same.
Hon'ble High Court of Orissa, while
disposing of the Review petition, it has
also directed the petitioner to file an
application before the trial court to direct
the opposite party to deposit the entire
sale proceeds of machineries and
materials so also the landed property
already sold. As per direction of the
Hon'ble High Court the petitioner filed a
petition which was disposed of by this
Court directing the opposite parties
including defendant No.6 to deposit the
entire sale proceeds of the sold
machineries and materials so also the
landed properties in the Court. Taking the
facts and circumstances of the case in to
consideration, I do not think it proper to
restrain the present opposite party from
transferring the suit properties till
disposal of the suit. Hence, it is ordered:
1 Against this Order dated 23.07.2008 the petitioner-Kalinga Utkal Buildwell
Private Limited having preferred writ petition being W.P.(C) No.14165 of 2008,
the same came to be dismissed by Order dated 18.11.2014.
m. The petitioners herein filed a petition under Order
VII, Rule 11 of the CPC in CS No.12 of 2006.
Against rejection of said petition vide Order dated
09.09.2009 by the learned 2nd Additional Civil
Judge, Senior Division, Cuttack, revision under
Section 115 of the CPC being preferred by the
present petitioner, this Court made the following
observations vide Judgment dated 08.03.20172 in
Civil Revision No.48 of 2009:
―1. This Civil Revision has been filed assailing the
impugned order dated 09.09.2009 passed by
the 2nd Additional Civil Judge (Senior Division),
Cuttack thereby rejecting an application under
Order 7, Rule 11 of the Code of Civil Procedure
at the instance of the present petitioner by
appearing as defendant No.8 in the suit.
***
3. Pending trial of the suit, the plaintiff i.e. the
present opposite party No.1 filed an application
for impleading the present petitioner as
defendant by way of an application under
Order 1, Rule 10 of the Code of Civil Procedure,
which application being allowed by the trial
court vide order dated 09.10.20067.
Consequent upon allowing the application
2 Order dated 29.07.2019 of the Hon‟ble Supreme Court in S.L.P.(C) No.12545 of
2018 against the Judgment dated 08.03.2017 rendered in CR No.48 of 2009:
―We do not find any ground to interfere in the impugned order. The Special Leave
Petition is dismissed. However, the Trial Court is directed to decide the Suit
No. 12 of 2006 on merits in accordance with law at an early date.
Pending application(s), if any, stands disposed of accordingly‖
under Order 1, Rule 10 of the Code of Civil
Procedure, the present petitioner was
impleaded as defendant No.8 in the suit. On
service of notice, the defendant No.8 at the first
hand filed an application under Order 7 Rule
11 of the Code of Civil Procedure for rejection of
the plaint as against the present petitioner i.e.
defendant No.8. This application was decided
on contest ultimately rejecting the application of
the petitioner under Order 7 Rule 11 of the
Code of Civil Procedure on the premises that
the petitioner being a subsequent purchaser of
the property involved in the suit there may not
be an effective adjudication of the suit in
absence of the present petitioner. Further, any
judgment and decree passed in the suit may
also remain ineffective in absence of defendant
No.8. It is under the above premises, the trial
court also held that there was no scope for
rejecting the plaint at that stage.
***
9. Law has been fairly well settled that it is
mandatory to first to see that the plaint against
which a bundle of facts which is necessary for
the plaintiff to prove in order to succeed in the
suit and there is also necessity not only to aver
the facts but also to prove the facts in order to
succeed in the suit. Entire reading of the
plaint after amendment even this Court
nowhere finds any facts/pleading
involving defendant No.8 so as to
determination of either of the issues in
suit is required in presence of the
defendant No.8. ***
Reading the provision at Order 7 Rule 11
of the Code of Civil Procedure, this Court
finds that there is a clear provision for
rejection of the plaint in absence of
disclosure of cause of action, which means
there ought to be disclosure of a cause of
action in respect of a party involving the
prayer made therein in the suit. From the
documents involved in the present case,
the pleading and as already observed by
this Court that there is absolutely no
pleading involving the defendant No.8, the
present petitioner, in whatsoever manner
in the suit, this Court has no hesitation to
observe that in absence of any cause of
action pleaded in a plaint, the plaint has
to be vitiated in respect of such defendant.
Continuance of suit against such parties
will become only academic and no help
and only an harassment to such parties as
it will be compelled to force to face an
unnecessary litigation the proceeding
throughout the trial, which is admittedly
to end with no grant of relief against the
petitioner i.e. defendant No.8 in the case
at hand.
***
12. In another decision in the case of A.B.C.
Laminart Pvt. Ltd. & Anr. Vrs. A.P. Agencies,
Salem (1999) 2 SCC 163, the Hon'ble Apex
Court defining the meaning of cause of action
observed as follows:
‗A cause of action means every fact, which if
traversed, it would be necessary for the
plaintiff to prove in order to support his right to
a judgment of the Court. In other words, it is a
bundle of facts which taken with the law
applicable to them gives the plaintiff a right to
relief against the defendant. It must include
some act done by the defendant since in the
absence of such an act no cause of action can
possibly accrue. It is not limited to the actual
infringement of the right sued on but includes
all the material facts on which it is founded. It
does not comprise evidence necessary to prove
such facts, but every fact necessary for the
plaintiff to prove to enable him to obtain a
decree. Everything which if not proved would
give the defendant a right to immediate
judgment must be part of the cause of action.
But it has no relating whether to the defence
which may be set up by the defendant nor
does it depend upon the character of the relief
prayed for by the plaintiff.'
Similarly, in the case in between Bloom Dekor
Ltd. Vrs. Subhash Himatlal Desai & Ors, (1994)
6 SCC 322, the Hon'ble Apex Court again
dealing with the concept of cause of action in
the circumstance observed as follows:
‗By ‗cause of action' it is meant every fact,
which, if traversed, it would be necessary for
the plaintiff to prove in order to support his
right to a judgment of the Court (Cooke Vrs.
Gill, 1873 LR 8 CP 107).
In other words, bundle of facts which it is
necessary for the plaintiff to prove in order to
succeed in the suit.'
It is mandatory that in order to get relief, the
plaintiff has to aver all material facts. In other
words, it is necessary for the plaintiff to aver
and prove in order to succeed in the suit.'
13. Considering the facts involved in the case, the
allegation raised by the respective parties and
going through the impugned order vide
Annexure-7 to the Civil Revision, this Court
finds the trial court after recording the
pleadings of the respective parties and the
objections therein involving the application
under Order 7 Rule 11 of the Code of Civil
Procedure and after taking note of the
developments taken through the disposal of the
writ petition in W.P.(C) No.5479 of 2006,
rejected the application under Order 7 Rule 11
of the Code of Civil Procedure solely on the
premises that the direction of the High Court for
deposit of the sale proceeds and for non-
deposit of the said amount in terms of the
direction of the High Court, the presence of
defendant No.8 is required to confirm the fact
of sale and bring forth the amount received
towards the sale of the machinery and
materials. This Court here finds in absence of
any pleading to this effect, there cannot be an
issue. Consequently, such information remain
inconsequential and even assuming that such
evidence may be a requirement, then nothing
prevents to record the statement of defendant
No.8 taking leave of the Court and by making
him a witness. The trial court has failed in
appreciating the aforesaid legal aspect.
14. Under the observations and findings made
hereinabove and further following the dictum of
the Hon'ble Apex Court referred to hereinabove,
this Court finds the petitioner had a clear case
for dismissal of the plaint and trial court having
failed to appreciate above aspect of the matter,
the impugned order cannot be sustained.
Thus, in interfering in the impugned
order, this Court sets aside the order at
Annexure-7 and allows the application
under Order 7 Rule 11 of the Code of Civil
Procedure at the instance of the defendant
No.8, the present petitioner further directs
the trial court to treat the suit to have
been dismissed as against the defendant
No.8, present petitioner.
15. In the result, the Civil Revision stands allowed.
No order as to cost.‖
n. The opposite party No.1-Union has filed suit being
CS No.1039 of 2017 before the 1st Civil Judge,
Senior Division, Cuttack. By way of amendment to
the plaint the present petitioners were impleaded
as defendant Nos.3 and 4 to the said civil suit. Said
defendants-petitioners have filed petition under
Order VII, Rule 11 of the CPC questioning the
maintainability of suit being CS No.1039 of 2017
with a prayer to reject the plaint. In the said
petition, narrating the factual details with regard to
CS No.12 of 1996 and citing the date of knowledge
of the opposite party No.1-Union with respect to
RSD No.517, dated 31.01.2006 and RSD No.518
(present petitioners) have taken the stance as
follows:
―8. What is the case of the plaintiff that the
defendant Nos.1 and 2-company with an
ulterior motive and without settling the dues of
the workers have sold away certain properties
described in the Schedule of the plant. The
defendant Nos.1 and 2 have transferred the
suit Scheduled property vide RSD No.517,
dated 31.01.2006 and RSD No.518 dated
31.01.2006 in favour of the defendant Nos.3
and 4 without the knowledge of the plaintiff
with a motive to debar the plaintiff from their
legitimate dues. Hence such action of transfer
of suit land by the defendant Nos.1 and 2 are
illegal and the deed of transfer is a void
document and inoperative in law under the
laws of the country. Such transfer by virtue of
the aforesaid sale deals and the mutation
Record-of-Rights issued in favour of the
defendant Nos.3 and 4 violating the procedure
of law by changing the status of the land from
factory premises to ‗gharbari' land is also bad
in the eye of law and accordingly such transfer
is not binding upon the plaintiff. Hence the
plaintiff having no other alternative is coerced
to file the present suit for declaration of the
aforementioned sale deeds as void, inoperative
in law and not binding upon the plaintiff.
9. That it is humbly submitted that the suit in its
present form is barred by law of limitation. The
plaintiff in the present suit seeks for a
declaration that the RSD No.517 and RSD
No.518 dated 31.01.2006, as void and
inoperative in law and not binding upon the
plaintiffs. The Limitation Act, 1963 clearly
states that the period of limitation for
declaration of a sale deed to be void is three
years from when their right to sue first
accrues3. Hence their right to bring a suit for
declaration of the sale deeds to be void accrued
in the year 2006 when the defendant Nos.1
and 2 sold the suit scheduled property to the
defendant Nos.3 and 4.‖
3 Articles 58, 59 and 113 of the Schedule appended to the Limitation Act, 1963
stand as follows:
Description Period of Time from which
of suit limitation period begins to
run
PART III.--
Suits relating to declarations
58. To obtain any Three years. When the right to
other declaration. sue first accrues.
Part IV.--
Suits relating to decrees and instruments
59. To cancel or set aside Three years. When the facts entitling the
an instrument or plaintiff to have the instrument
decree or for the or decree cancelled or set aside
rescission of a or the contract rescinded first
contract. become known to him
PART X.--
Suits for which there is no prescribed period
113. Any suit for which no Three years When the right to sue accrues.
period of limitation is
provided elsewhere in
this Schedule.
o. The learned 2nd Additional Civil Judge, Senior
Division, Cuttack, has passed the Order dated
30.09.2019, as follows:
―04. After considering the averment made by both
the parties and gone through the case record it
is found that the present suit has been filed by
the plaintiff for declaration of R.S.D. Nos.517,
518 and R.O.R bearing Khata No.71 and Khata
No.659 of mouza Nuapada are void and also
permanent injunction. The defendants have
filed the petition under Order 7, Rule 11 (a) and
(d) of C.P.C. The defendants specifically, prays
that the plaintiff has no cause of action to file
the present suit. The plaintiff in para No.16
mentioned that, the cause of action arose on
12.12.2017 when the defendants tried to evict
the plaintiff. Cause of action comprise of
bundle of facts and it can be ascertained after
adducing evidence from both the parties and
after completion of trial. However, the plain
reading of plaint does not show that the
present suit is bad for non-disclosure of cause
of action. The defendants also raised the plea
that the suit is barred by the law of limitation.
Law is well settled that question regarding
limitation cannot be decided at the time of
considering an application under Order 7, Rule
11 of C.P.C for deciding such application form
in plaint rather, germane and plea taken by
defendant is wholly irrelevant. Issue regarding
the suit being barred by limitation is a triable
issue and for which reason the plaint cannot be
rejected at the threshold. Question of
limitation is a mixed question of fact and
law. Whether the present suit is barred by
law of limitation is an issue which will be
decided form the evidences of the parties
after settlement of issues. However, the
plain reading of the plaint does not show that
the present suit is expressly barred by any
statute/law.
Considering the aforesaid fact and
circumstances of the case, I am of the
considered view that the present petition filed
by defendant No.3 and 4 on dated bears no
merit and stands rejected.‖
p. Said Order dated 30.09.2019 of the 2nd Additional
Civil Judge, Senior Division, is under challenge on
the ground that the learned Court has failed to
exercise its jurisdiction and, thereby illegally
exercised its jurisdiction in rejecting the petition
under Order VII, Rule 11 of the CPC without
applying conscientious mind to the fact of the
present case vis-à-vis glaringly hit by law of
limitation.
Question for consideration in this revision petition:
3. With the aforesaid background material, this Court is
called upon to decide whether the rejection of petition
under Order VII, Rule 11 of the CPC vide Order dated
30.09.2019 in CS No.1039 of 2017 questioning the
transactions by virtue of Registered Sale Deeds (RSD
Nos.517 and 518, dated 31.01.2006) executed between
the petitioner(s) and the opposite party Nos.2 and 3
citing the reason that the point of limitation being mixed
question of facts and law can be decided at the stage of
consideration of petition under Clauses (a) and (d) of
Rule 11 of Order VII?
Hearing:
4. On consent of counsel for both the sides, this matter is
taken up for final hearing at the stage of admission.
4.1. Heard Sri Surya Prasad Misra, learned Senior Advocate
along with Ms. Sagarika Sahoo, Advocate for the
petitioner; Sri Bamadev Baral, learned Advocate for the
opposite party No.1 and Sri Sougat Dash, learned
Advocate for the opposite party Nos.2 and 3.
4.2. Upon hearing the counsel for the respective parties, the
matter stood reserved for preparation and delivery of
Judgment/Order thereon.
Submissions of the petitioner:
5. Sri Surya Prasad Misra, learned Senior Advocate being
assisted by Ms. Sagarika Sahoo, learned Advocate
reiterating the sequence of events urged that when there
is no dispute that the opposite party No.1-Union had the
knowledge about execution of sale deeds vide RSD
Nos.517 and 518, dated 31.01.2006, in that year itself
and such sale deeds being executed between the
petitioners and the opposite party Nos.2 and 3 were
subject matter of dispute in the earlier proceedings
which was carried up to the Hon‟ble Supreme Court of
India, it is ex facie manifest from record that questioning
the execution of such sale deeds and seeking declaration
by the learned 2nd Additional Civil Judge, Senior
Division, Cuttack that the same are "void, inoperative in
law and not binding upon the plaintiffs (the opposite
party No.1 herein)" is clearly barred by law encompassed
within the meaning of clause (d) of Rule (11) of Order VII
of the CPC.
5.1. Referring to paragraph 16 of the plaint (Annexure-2) in
CS No.1039 of 2017, he would submit that the opposite
party No.1, citing cause of action having arose on
12.12.2017, i.e., the date "when the defendants tried to
evict the plaintiff from the peaceful possession over the
suit land and tried to change the nature and character
of the suit land to sale the outsiders", for claiming such
a relief from the learned trial Court is misconceived and
misdirected.
5.2. He submitted that the owners of the suit schedule
properties being the opposite party No.2 and 3 and by
virtue of registered sale deeds being executed in favour
of the petitioners, the opposite party No.1-plaintiff can at
no stretch of imagination be said to be in peaceful
possession or title of the schedule properties.
Furthermore, the sale deeds being executed between the
petitioners and the opposite party Nos.2 and 3, the
opposite party No.1-Union cannot be said to be privy to
contract and as such the Union has no locus standi to
challenge the Registered Sale Deeds dated 31.01.2006.
In view of Clause (a) of Rule 11 of Order VII, CPC no
cause of action having arisen on 12.12.2017, the suit is
liable to be dismissed by rejecting the plaint in CS
No.1039 of 2017.
5.3. This Court having considered the interest of Union and
having protected the interest of the Union by Order
dated 11.12.2006 passed in RVWPET No.118 of 2006
(arising out of Order dated 25.08.1996 in W.P.(C)
No.5479 of 2006) and having set at rest the claim as
against the present petitioners vide Judgment dated
08.03.2017 passed in Civil Revision No.48 of 2009
(which remained undisturbed by the Hon‟ble Supreme
Court of India), there is no occasion for the opposite
party No.1 to maintain further suit being CS No.1039 of
2017.
5.4. Sri Surya Prasad Misra, learned Senior Advocate made
valiant attack on the very sustainability and propriety of
Order dated 30.09.2019 passed by the learned 2nd
Additional Civil Judge, Senior Division, by advancing
argument that though the question of limitation
generally involves mixed question of fact and law, when
upon meaningful reading of the plaint it can be couched
that clever drafting "created illusion of cause of action".
For the suit is hopelessly barred by limitation, the plaint
could have been rejected by the said learned trial Court
exercising the jurisdiction under Order VII, Rule 11(d) of
the CPC.
5.5. When this Court has protected the interest of the Union
against the properties of the opposite party Nos.2 and 3
in earlier proceeding(s) by directing them to furnish
bank guarantee equal to the amount of statutory dues
liable to be paid, and the Hon‟ble Supreme Court of
India while refraining to entertain special leave petition
against the Judgment dated 08.03.2017 in CR No.48 of
2009 in connection with CS No.12 of 2006 pending
before the 2nd Additional Civil Judge, Senior Division,
Cuttack, being couched in the language contained in the
plaint, directed for expeditious disposal of said suit.
5.6. Instead of cooperating with the said Court in quick
disposal of CS No.12 of 2006, the opposite party No.1
has been trying to protract the litigation by filing the suit
bearing CS No.1039 of 2017.
5.7. Thus, essentially he would submit that the learned 2nd
Additional Civil Judge, Senior Division, instead of
appreciating scope and ambit of Order VII, Rule 11, CPC
was swayed away by the cleverly drafted pleading by the
opposite party No.1. Sri Surya Prasad Misra, learned
Senior Advocate submitted that in this respect it would
be apposite to refer to T. Arivandandam Vrs. T.V.
Satyapal, AIR 1977 SC 2421 = (1977) 4 SCC 467 wherein
the legal position has been succinctly stated thus:
―We have not the slightest hesitation in condemning the
petitioner for the gross abuse of the process of the court
repeatedly and unrepentently resorted to. From the
statement of the facts found in the judgment of the High
Court, it is perfectly plain that the suit now pending before
the First Munsif's Court, Bangalore, is a flagrant misuse
of the mercies of the law in receiving plaints. The learned
Munsif 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 should exercise his power under Order 7, Rule
11 CPC taking care to see that the ground mentioned
therein is fulfilled. And, if clever drafting has created the
illusion of a cause of action, nip it in the bud at the first
hearing by examining the party searchingly under Order
10, CPC. An activist Judge is the answer to irresponsible
law suits. The trial courts would 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, (Cr. XI) and must be triggered against them. In
this case, the learned Judge to his cost realised what
George Bernard Shaw remarked on the assassination of
Mahatma Gandhi: ‗It is dangerous to be too good.' ***‖
5.8. Amplifying his arguments, Sri Surya Prasad Misra,
learned Senior Advocate with able assistance of Ms.
Sagarika Sahoo, learned Advocate made a reference to
Article 59 of the Limitation Act, 1963 and contended
that the factum of execution of Registered Sale Deeds on
31.01.2006 between the opposite party No.2 and 3 and
the present petitioners was well within the knowledge of
the opposite party No.1 much prior to three years of the
institution of CS No.1039 of 2017 and the opposite party
No.1 has been contesting the rejection of petition of the
petitioner under Order VII, Rule 11, CPC filed in the CS
No.12 of 2006. It is only after this Court allowed said
petition filed at the behest of the petitioner in CR No.48
of 2009, the opposite party No.1 has filed the suit being
CS No.1039 of 2017 with mischievous motive and
pursuing the vexatious litigation to thwart the Order
dated 29.07.2019 of the Hon‟ble Supreme Court of India
passed in SLP(C) No.12545 of 2017 (Orissa Textiles and
Steels Employees' Union Vrs. Kalinga Utkal Buildwell
Private Limited).
5.9. Having failed to appreciate such factual details, the
learned 2nd Additional Civil Judge, Senior Division,
Cuttack has refused to exercise his jurisdiction aptly to
consider that Section 3 of the Limitation Act, 1963 casts
duty upon the Court to dismiss the suit, if made after
prescribed period, although the limitation is not set up
as a defence. Order VII, Rule 11(d) of the CPC furthers
the cause of the petitioners inasmuch as it is incumbent
upon the Court to reject the plaint where the suit
appears from the statement in the plaint to be barred by
any "law", which connotation comprehends within it the
"law of limitation". He, therefore, relied upon the
decision of the Hon‟ble Supreme Court of India rendered
in the case of Kamlesh Babu Vrs. Lajpat Ray Sharma,
(2008) 12 SCC 577.
Submissions of the opposite party No.1:
6. Sri Bamadev Baral, learned Advocate for the opposite
party No.1 contending that allowing the civil revision
would virtually dismiss the suit, being CS No.1039 of
2017, at the threshold, which is impermissible in terms
of the provisions of Order VII, Rule 11 of the CPC.
6.1. It is submitted that the Registered Sale Deeds dated
31.01.2006 are sham transactions entered into between
the petitioners and the opposite party Nos.2 and 3 only
to dissuade payment of legitimate dues to the opposite
party No.1-plaintiff in CS No.1039 of 2017. The earlier
suit being CS No.12 of 2006 would be rendered
ineffective and infructuous, if the relief by way of petition
under Order VII, Rule 11, CPC is granted to the
petitioners who are the purchasers of immovable
properties of the opposite party Nos.2 and 3.
6.2. In the event the Union succeeds in CS No.12 of 2006,
the dues liable to be paid to the opposite party No.1 can
be recovered from the opposite party Nos.2 and 3 from
out of the properties which are sold under Registered
Sale Deeds dated 31.01.2006. The transactions between
the petitioners and the opposite party Nos.2 and 3 are
only to mean defrauding the preferential creditors in
terms of Section 529A of the Companies Act, 1956.
6.3. It is vehemently contended that the cause of action for
filing CS No.12 of 2006 arose when the defendants sold
the materials, machineries and shed, etc. of the factory
to outsiders on 19.04.2005 and 06.05.2005; whereas
cause of action arose for filling CS No.1039 of 2017
arose on 12.12.2017 when the defendants tried to evict
the plaintiffs from the peaceful possession over the suit
land. The cause of action for both the suits being
distinct and different involving different parties, the plea
of the petitioners would not attract purview of clause (a)
of Rule 11 of Order VII nor do the provisions of Section 9
and Section 10 of the CPC apply to the fact-situation of
the present case.
6.4. It is explained by Sri Bamadev Baral, learned Advocate
that in order to establish the bar under Order II, Rule 2
of the CPC, the pleadings of earlier suit (CS No.12 of
2006) compared with the present suit (CS No.1039 of
2017) would make it clear that there is no similitude of
facts. To establish so, detailed evidence is required to be
laid in the trial of the suit by the party asserting such
fact. The cause of action for the two suits being distinct
and the parties are different, additional fact would make
whole of the claim in CS No.1039 of 2017 maintainable.
6.5. Though Sri Bamadev Baral, learned Advocate cited very
many decisions during the course of hearing, in essence,
the argument went on to suggest that the suit is
maintainable as against the petitioners notwithstanding
the petition under Order VII, Rule 11 of the CPC filed at
the behest of Kalinga Utkal Buildwell Pvt. Ltd. in CS
No.12 of 2006 was allowed by this Court in CR No.48 of
2009. It is vehemently contended that Civil Court‟s
jurisdiction to try all suits of civil nature is to be
presumed, unless exclusion of jurisdiction is expressly
or explicitly spelt out.
Submissions of the opposite party Nos.2 and 3:
7. Sailing on the same boat as that of the petitioners, Sri
Sougat Dash, learned Advocate for the opposite party
Nos.2 and 3 would submit that the issue with regard to
discharge of liability by these opposite parties would be
adjudicated in CS No.12 of 2006 which is stated to be
pending before the 2nd Additional Civil Judge (Senior
Division), Cuttack (now, 5th Additional Civil Judge
(Senior Division), Cuttack) and such suit is directed to
be decided on merits in accordance with law "at an early
date" by the Hon‟ble Supreme Court of India vide Order
dated 29.07.2019 in SLP(C) No.12545 of 2018, which
was filed at the behest of the opposite party No.1.
7.1. By virtue of orders of this Court in connection with CS
No.12 of 2006, the interest of the opposite party No.1
has been directed to be well-protected. Therefore, CS
No.1039 of 2017 is a vexatious one and need not be
entertained at all.
7.2. He further submitted that the opposite party No.1 has
no occasion nor does he have locus standi to maintain
said suit praying for a relief to declare the Registered
Sale Deeds dated 31.01.2006 executed between the
opposite party Nos.2 and 3 and the petitioners as void
and inoperative for the fact could not be disputed by the
learned counsel for the opposite party No.1, Sri Bamadev
Baral, that said opposite party No.1-Union is not the
true owners of the suit properties.
7.3. The terms of the Registered Sale Deeds dated
31.01.2006 being already acted upon way back in the
year 2006, the opposite party No.1 has no cause of
action to maintain the suit being CS No.1039 of 2017 at
this belated stage.
Legal status with regard to limitation in the context of
Order VII, Rule 11(d) of the Code of Civil Procedure, 1908:
8. The scope and ambit of Order VII, Rule 11(a) and (d) of
the CPC has elaborately been discussed in Anil Kumar
Dalal Vrs. State of Odisha, 2024 SCC OnLine Ori 1898,
which needs no reiteration herein. This Court also finds
support in this regard from Frost International Limited
Vrs. Milan Developers and Builders (P) Limited, 2022
LiveLaw (SC) 340.
9. With respect to Order VII, Rule 11(d) of the CPC vis-à-vis
consideration of suit being hit by law of limitation, this
Court feels it expedient to take note of Shakti Bhog Food
Industries Ltd. Vrs. The Central Bank of India, (2020) 6
SCR 538 = 2020 INSC 413 (cited by the counsel for the
opposite party No.1), wherein the Hon‟ble Supreme
Court of India has been pleased to observe as follows:
―6. The central question is:
whether the plaint as filed by the appellant
could have been rejected by invoking Order VII
Rule 11(d) of the CPC?
Indeed, Order VII Rule 11 of the CPC gives ample
power to the Court to reject the plaint, if from the
averments in the plaint, it is evident that the suit is
barred by any law including the law of limitation.
This position is no more res integra.
We may usefully refer to the decision of this Court in
Ram Prakash Gupta Vrs. Rajiv Kumar Gupta, (2007)
10 SCC 59. In paragraph Nos. 13 to 20 of the
reported decision, the Court observed as follows:
‗13. As per Order 7 Rule 11, the plaint is liable to 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.'
14. In Saleem Bhai Vrs. State of Maharashtra,
(2003) 1 SCC 557 it was held with reference to
Order 7 Rule 11 of the Code that
‗9. *** 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 ... at any stage of the suit --
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 7 CPC, the averments in
the plaint are germane; the pleas taken
by the defendant in the written statement
would be wholly irrelevant at that
stage,...' (SCC p. 560, para 9).
15. In I.T.C. Ltd. Vrs. Debts Recovery Appellate
Tribunal, (1998) 2 SCC 70 it was held that the
basic question to be decided while dealing
with an application filed under Order 7
Rule 11 of the Code is whether a real
cause of action has been set out in the
plaint or something purely illusory has
been stated with a view to get out of Order
7 Rule 11 of the Code.
16. ‗The trial court must remember that if on a
meaningful-- no formal-- reading of the plaint
it is manifestly vexatious and meritless in the
sense of not disclosing a clear right to sue, it
should exercise its power under Order 7 Rule
11 CPC taking care to see that the ground
mentioned therein is fulfilled. If clever drafting
has created the illusion of a cause of action, [it
has to be nipped] in the bud at the first hearing
by examining the party searchingly under
Order 10 CPC.' (See T. Arivandandam Vrs. T.V.
Satyapal, (1977) 4 SCC 467, SCC p. 468.).
17. It is trite law that not any particular plea has to
be considered, and the whole plaint has to be
read. As was observed by this Court in Roop
Lal Sathi Vrs. Nachhattar Singh Gill, (1982) 3
SCC 487, only a part of the plaint cannot be
rejected and if no cause of action is disclosed,
the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. Vrs. Ganesh
Property, (1998) 7 SCC 184 it was observed
that the averments in the plaint as a whole
have to be seen to find out whether Clause (d)
of Rule 11 of Order 7 was applicable.
19. In Sopan Sukhdeo Sable Vrs. Assistant Charity
Commissioner, (2004) 3 SCC 137 this Court
held thus: (SCC pp. 14647, para 15)
‗15. There cannot be any
compartmentalisation, dissection,
segregation and inversions of the
language of various paragraphs in the
plaint. If such a course is adopted it
would run counter to the cardinal canon
of interpretation according to which a
pleading has to be read as a whole to
ascertain its true import. It is 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
construed as it stands without addition or
subtraction or words or change of its
apparent grammatical sense. The
intention of the party concerned is to be
gathered primarily from the tenor and
terms of his pleadings taken as a whole.
At the same time it should be borne in
mind that no pedantic approach should
be adopted to defeat justice on hair-
splitting technicalities.'
20. For our purpose, Clause (d) is relevant. It
makes it clear that if the plaint does not
contain necessary averments relating to
limitation, the same is liable to be
rejected. For the said purpose, it is the
duty of the person who files such an
application to satisfy the court that the
plaint does not disclose how the same is
in time. In order to answer the said question,
it is incumbent on the part of the court to verify
the entire plaint. Order 7 Rule 12 mandates
where a plaint is rejected, the court has to
record the order to that effect with the reasons
for such order.'
On the same lines, this Court in Church of
Christ Charitable Trust & Educational
Charitable Society Vrs. Ponniamman
Educational Trust, (2012) 8 SCC 706, observed
as follows:
‗10 ... It is clear from the above that where
the plaint does not disclose a cause of
action, the relief claimed is undervalued
and not corrected within the time allowed
by the court, insufficiently stamped and
not rectified within the time fixed by the
court, barred by any law, failed to enclose
the required copies and the plaintiff fails
to comply with the provisions of Rule 9,
the court has no other option except to
reject the same. A reading of the above
provision also makes it clear that power
under Order 7 Rule 11 of the Code can be
exercised at any stage of the suit either
before registering the plaint or after the
issuance of summons to the defendants
or at any time before the conclusion of the
trial.
11. This position was explained by this Court
in Saleem Bhai vs. State of Maharashtra,
(2003) 1 SCC 557, in which, while
considering Order 7 Rule 11 of the Code,
it was held as under: (SCC p. 560, para
9)
‗9. A perusal of Order 7 Rule 11 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 7
Rule 11 CPC at any stage of the
suit-- 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 7 CPC, the averments in the
plaint are germane; the pleas taken
by the defendant in the written
statement would be wholly
irrelevant at that stage, therefore, a
direction to file the written statement
without deciding the application
under Order 7 Rule 11 CPC cannot
but be procedural irregularity
touching the exercise of jurisdiction
by the trial court.'
It is clear that in order to consider Order 7
Rule 11, the court has to look into the
averments in the plaint and the same can
be exercised by the trial court at any
stage of the suit. It is also clear that the
averments in the written statement are
immaterial and it is the duty of the Court
to scrutinize the averments/pleas in the
plaint. In other words, what needs to be
looked into in deciding such an
application are the averments in the
plaint. At that stage, the pleas taken by
the defendant in the written statement
are wholly irrelevant and the matter is to
be decided only on the plaint averments.
These principles have been reiterated in
Raptakos Brett & Co. Ltd. Vrs. Ganesh
Property, (1998) 7 SCC 184 and Mayar
(H.K.) Ltd. Vrs. Owners and Parties,
Vessel M.V. Fortune Express, (2006) 3
SCC 100.
12. It is also useful to refer the judgment in T.
Arivandandam Vrs. T.V. Satyapal, (1977)
4 SCC 467, wherein while considering the
very same provision i.e. Order 7 Rule 11
and the duty of the trial court in
considering such application, this Court
has reminded the trial Judges with the
following observation: (SCC p. 470, para
5)
‗5. ... The learned Munsif 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 should exercise his
power under Order 7, Rule 11 C.P.C.
taking care to see that the ground
mentioned therein is fulfilled. And, if
clever drafting has created the
illusion of a cause of action, nip it in
the bud at the first hearing by
examining the party searchingly
under Order 10, C.P.C. An activist
Judge is the answer to irresponsible
law suits. The trial courts would
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, (Chapter XI) and must be
triggered against them.'
It is clear that if the allegations are
vexatious and meritless and not
disclosing a clear right or material(s)
to sue, it is the duty of the trial
Judge to exercise his power under
Order 7 Rule 11. If clever drafting
has created the illusion of a cause of
action as observed by Krishna Iyer,
J., in the above referred decision, it
should be nipped in the bud at the
first hearing by examining the
parties under Order 10 of the Code.'
We may also advert to the exposition of this Court in
Madanuri Sri Rama Chandra Murthy Vrs. Syed
Jalal, (2017) 13 SCC 174. In paragraph 7 of the said
decision, this Court has succinctly restated the legal
position as follows:
‗7. The plaint can be rejected under Order 7 Rule
11 if conditions enumerated in the said
provision are fulfilled. It is needless to observe
that the power under Order 7 Rule 11, CPC can
be exercised by the Court at any stage of the
suit. The relevant facts which need to be looked
into for deciding the application are the
averments of the plaint only. If on an entire
and meaningful reading of the plaint, it is
found that the suit is manifestly vexatious and
meritless in the sense of not disclosing any
right to sue, the court should exercise power
under Order 7 Rule 11 CPC. Since the power
conferred on the Court to terminate civil action
at the threshold is drastic, the conditions
enumerated under Order 7 Rule 11 CPC to the
exercise of power of rejection of plaint have to
be strictly adhered to. The averments of the
plaint have to be read as a whole to find
out whether the averments disclose a
cause of action or whether the suit is
barred by any law. It is needless to observe
that the question as to whether the suit is
barred by any law, would always depend
upon the facts and circumstances of each
case. The averments in the written statement
as well as the contentions of the defendant are
wholly immaterial while considering the prayer
of the defendant for rejection of the plaint. Even
when the allegations made in the plaint are
taken to be correct as a whole on their face
value, if they show that the suit is barred by
any law, or do not disclose cause of action, the
application for rejection of plaint can be
entertained and the power under Order 7 Rule
11 CPC can be exercised. If clever drafting of
the plaint has created the illusion of a cause of
action, the court will nip it in the bud at the
earliest so that bogus litigation will end at the
earlier stage.' ***‖
10. Ergo, whenever the question as to whether the suit is
barred by limitation arises, the Court inter alia is to bear
in mind the following:
a. the question as to whether the suit is barred by any
law, would always depend upon the facts and
circumstances of each case;
b. 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
should exercise his power under Order VII, Rule 11
CPC taking care to see that the ground mentioned
therein is fulfilled;
c. the averments of the plaint have to be read as a
whole to find out whether the averments disclose a
cause of action or whether the suit is barred by any
law;
d. if the plaint does not contain necessary averments
relating to limitation, the same is liable to be
rejected and for the said purpose, it is the duty of
the person who files such an application to satisfy
the Court that the plaint does not disclose how the
same is in time;
e. if the allegations are vexatious and meritless and
not disclosing a clear right or material(s) to sue, it
is the duty of the trial Judge to exercise his power
under Order VII, Rule 11 of CPC;
f. 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 parties under Order
10 of the CPC.
Analysis and discussions:
11. Scanning through the contents of the plaint enclosed to
this civil revision petition as Annexure-2 reveals that the
cause of action for filing suit bearing CS No.1039 of
2017 arose on 12.12.2017, i.e., the date when "the
defendants (petitioner and opposite party Nos.2 and 3
herein) tried to evict the plaintiffs from the peaceful
possession over the suit land".
11.1. The averments of the plaint transpire that the suit has
been filed on the apprehension that the wages, bonus,
provident fund, gratuity and other statutory dues may
possibly not be recovered from the opposite party Nos.2
and 3 in the event the opposite party No.1-Union
succeeds in CS No.12 of 2006, which is stated to be
pending before the 2nd Additional Civil Judge, Senior
Division, Cuttack (presently, 5th Additional Civil Judge,
Senior Division, Cuttack).
11.2. Scrutiny of plaint of CS No.1039 of 2017 with reference
to Order VII, Rule 14, CPC, to ascertain whether the
opposite party No.1-plaintiff has made complete
disclosure of facts, it is demonstrably lacking in material
particulars. Under the heading "Documents relied
upon", it is reflected as follows:
―1. R.S.D. No.517, dtd. 31.01.2006.
2. R.S.D No.518, dtd.31.01.2006.
3. Hal Khata No.71
4. Hal Khata No.659
5. Mutation Khata No.71
6. Mutation Khata No.659
Any other documents will be filed with the leave of the
court.‖
11.3. The documents do not evince the fact that the Union
was in possession of the suit schedule properties.
Knowing fully well regarding proceedings and the Orders
passed in CS No.12 of 2006 (its own suit), such fact has
been concealed in CS No.1039 of 2017.
11.4. The subject plaint does not disclose that at any point of
time the opposite party No.1-Union was in possession of
the suit schedule land and there is non-disclosure
regarding circumstances as to how the Union could
claim ownership/title over the suit schedule properties.
It also does not disclose the date of knowledge of
execution of Registered Sale Deeds dated 31.01.2006.
Nevertheless, cunningly enough the plaintiff-opposite
party No.1 has not made any averment nor brought out
factual details with respect to Judgment dated
08.03.2017 of this Court in Civil Revision No.48 of 2009
and Order dated 29.07.2019 of the Hon‟ble Supreme
Court of India in SLP(C) No.12545 of 2018. For the sake
of reiteration, the petition of the present petitioners in
CS No.12 of 2006 under Order VII, Rule 11 of the CPC
has been allowed by this Court, which attained finality
on dismissal of the aforementioned SLP by the Hon‟ble
Supreme Court. It may be relevant to take note of the
fact that the SLP before the Supreme Court of India was
filed by the opposite party No.1-Union and in the said
case while dismissing, the said Hon‟ble Court directed
for adjudication of the suit, being CS No.12 of 2006, at
an early date.
11.5. Though the fact of execution of Registered Sale Deeds
was within the knowledge of the opposite party No.1,
having not questioned the validity (though the Union has
no locus standi) within the period stipulated under the
Limitation Act, 1963, this Court feels it apposite to
observe that suppression of material fact would
tantamount to fraud on the Court as well as on the
parties.
11.6. In Smt. Badami Vrs. Bhali, (2012) 6 SCR 75, following
was the observation:
―21. In the said case4 it was clearly stated that the courts
of law are meant for imparting justice between the
parties and one who comes to the court, must come
with clean hands. A person whose case is based on
falsehood has no right to approach the Court. A
litigant, who approaches the court, is bound to
produce all the documents executed by him which
are relevant to the litigation. If a vital document is
withheld in order to gain advantage on the other
side he would be guilty of playing fraud on court as
well as on the opposite party.‖
11.7. As it appears, the opposite party No.1 has questioned
the transfer of suit schedule properties by dint of
execution of the Registered Sale Deeds dated 31.01.2006
in favour of the petitioners by opposite party Nos.2 and
3. The opposite party Nos.2 and 3-- the Orissa Textiles
4 S.P. Chengalvaraya Naidu (dead) by L.Rs. Vrs. Jagannath (dead) by L.Rs. and
others, AIR 1994 SC 853.
and Steels Ltd. (company) and the Kalinga Textile
Corporation (partnership firm) respectively-- alleged not
to have paid wages, bonus, provident fund, gratuity and
other statutory dues to the employees of the opposite
party No.1. The suit bearing Civil Suit No.12 of 2006 has
been filed before the Court of the Civil Judge (Senior
Division) against the said opposite party Nos.2 and 3 for
a declaration that the outstanding dues of the employees
be recovered from their properties.
11.8. This Court takes cognizance of the Order dated
11.12.2006 passed in RVWPET No.118 of 2006 in
connection with the CS No.12 of 2006, wherein the
interest of the opposite party No.1 against the opposite
party Nos.2 and 3 has been protected.
11.9. Further, as is undisputed, the Orissa Textiles and Steels
Employees‟ Union-opposite party No.1 filed an
Interlocutory Application being I.A. No.298 of 2006 in CS
No.12 of 2006 under Order XXXIX, Rules 1 and 2, CPC
praying to pass necessary orders restraining the
opposite parties from transferring the suit schedule
properties to any other stranger. The Order dated
08.02.2008 passed therein clearly depicts that direction
was issued to the opposite parties to deposit the entire
sale proceeds of the sold machineries and materials so
also the landed properties in the Court. Therefore, it was
not considered appropriate to restrain the opposite party
Nos.2 and 3 from transferring the suit schedule
properties. In CS No.12 of 1996, the opposite party No.1
has impleaded M/s. Kalinga Utkal Buildwell Private
Limited as defendant No.8.
11.10. In view of such position, the natural corollary
would be that, the opposite party No.1 having not been
successful in the CS No.12 of 2006 to restrain the
opposite parties from transferring the suit schedule
properties, vide Registered Sale Deeds dated 31.01.2006,
attempted to obtain further orders in this regard by way
of subsequent suit, being CS No.1039 of 2017. This is
clearly playing fraud on the Court and the opposite party
No.1 has not come to the Court with clear heart and
clean hand.
12. Thus being perceptible factual matrix of the case as
discussed in the foregoing paragraphs, there is no
ambiguity in the undisputed position with respect to
facts and law. It can be culled as follows:
a. The documents relied on as reflected in the plaint
do not have any semblance of title being vested in
the Orissa Textiles and Steels Employees‟ Union
(opposite party No.1-plaintiff).
b. There is not even a scrap of paper available on
record (record of CS No.12 of 2006) nor has it been
placed before this Court to suggest that the Orissa
Textiles and Steels Employees‟ Union (opposite
party No.1-plaintiff) had the possession over the
suit schedule properties, which were stated to have
been transferred by dint of the Registered Sale
Deeds bearing Nos.517 and 518 dated 31.01.2006.
c. In view of Order dated 11.12.2006 passed in
RVWPET No.118 of 2006 (relating to CS No.12 of
2006) by this Court, application bearing IA No.298
of 2006 being moved by the opposite party No.1 in
the said suit, the learned 2nd Additional Civil
Judge, Senior Division, Cuttack, has passed Order
dated 08.02.2008 declining to restrain the transfer
of properties belonging to the opposite party Nos.2
and 3, but directed the defendant No.6 therein,
namely Siba Prasad Mishra, Additional Director of
Orissa Textiles and Steels Ltd., to deposit entire
sale proceeds. On scrutiny of plaint in CS No.1039
of 2017, such vital fact is found missing from being
pleaded. As it appears the opposite party No.1 has
sought to avoid the judicial order passed in CS
No.12 of 2006 way back in the year 2008. In Firm
of Pratapchand Nopaji Vrs. Firm of Kotrike Venkatta
Setty & Sons etc., (1975) 3 SCR 1 = 1974 INSC 269,
it has been emphasised that,
―A question which has been raised before us is
whether the plaintiff, who entered into contracts
with third parties, who appeared as witnesses in the
cases now before us, so that these third parties
made the purchases and settlements in Bombay, the
payments for which are the subject matter of suits,
was dealing with them as a principal to principal.
The High Court had found that the relationship
between the plaintiff and the third parties he
employed to conclude the transactions was that of a
principal to principal. The question whether the
parties through whom the plaintiff actually alleged
carrying out of the contract set up between the
plaintiff and the defendants could themselves be
regarded as principals or agents of the plaintiffs will
become quite immaterial if the objects of the
contracts are found to be tainted with the kind of
illegality which is struck by Section 23 of the
Contract Act. Again, the mere fact that the contracts
between the plaintiff and the defendants were
entered into at Kurnool in the State of Andhra
Pradesh would also not make any difference in
principle if the objects of the contracts which were to
be carried out at Bombay were of such a kind as to
be hit by Section 23 of the Act. The principle which
would apply, if the objects are struck by Section 23
of the Contract Act, is embodied in the maxim: ‗Qui
facit per alium facit per se' (What one does through
another is done by oneself). To put it in another
form that which cannot be done directly may
not be done indirectly by engaging another
outside the prohibited area. It is immaterial
whether, for the doing of such an illegal act, the
agent employed is given the wider powers or
authority of the ‗pucca adatia', or, as the High Court
had held, he is clothed with the powers of an
ordinary commission agent only.‖
Pertinent may it be to make a reference to maxim,
Quando aliquid prohibetur fieri, prohibetur ex directo
et per obliquum meaning thereby when the doing of
anything is forbidden, then the doing of it either
directly or indirectly is forbidden. [Reference,
Concise Law Dictionary, by P.G. Osborn, published
by Sweet and Maxwell, 1927. Quando aliquid
prohibetur, prohibetur omne per quod devenitur ad
illud, meaning thereby whatever is prohibited by
law to be done, cannot legally be effected by an
indirect and ciruitous contrivance. [See, Super
Construction Vrs. ACST, (2008) 18 VST 387 (Ori)].
In Sant Lal Gupta Vrs. Modern Cooperative Group
Housing Society Ltd., (2010) 13 SCC 336 it has been
explained that what cannot be done directly, is not
permissible to be done obliquely, meaning thereby,
whatever is prohibited by law to be done, cannot
legally be effected by an indirect and circuitous
contrivance. An authority cannot be permitted to
evade a law by „shift or contrivance‟.
Hence, the learned 2nd Additional Civil Judge,
Senior Division, Cuttack, having passed Order
dated 08.02.2008 in CS No.12 of 2006 on the
application of the opposite party No.1 not to
restrain transfer of properties by the opposite party
Nos.2 and 3, the subterfuge device purportedly
applied by the opposite party No.1 by filing suit to
declare the transfer of properties by virtue of the
Registered Sale Deeds dated 31.01.2006 in the year
2017 is apparently an attempt to doing the things
indirectly which has already been refused by the
learned trial Court.
d. From the sequence of events as is available on
record would lead to arrive at a firm conclusion
that the opposite party No.1 had had the knowledge
about execution of Registered Sale Deeds dated
31.01.2006 much prior to three years of the date of
filing of suit being CS No.1039 of 2017. This suit
apparently seems to have been filed only to
circumvent or nullify the effect of Order dated
08.02.2008 passed by the 2nd Additional Civil
Judge, Senior Division, Cuttack in I.A. No.298 of
2006 in connection with CS No.12 of 2006 in
pursuance of Order dated 11.12.2006 in RVWPET
No.118 of 2006 (arising out of Order dated
25.08.2006 passed in W.P.(C) No.5479 of 2006) of
this Court, in obedience of which the present
opposite party No.1 (plaintiff in CS No.1039 of 2017
and defendant in CS No.12 of 2006) had moved
said interlocutory application. There is no sufficient
and reasonable cause shown by the opposite party
No.1 for approaching the Court in CS No.1039 of
2017 to question the execution of Registered Sale
Deeds dated 31.03.2006 between the opposite
party Nos.2 and 3 and the petitioners, more so
when its interest to recover the statutory dues, etc.
claimed in CS No.12 of 2006 is well-protected by
Order dated 08.02.2008 of the 2nd Additional Civil
Judge, Senior Division, Cuttack.
12.1. Facts are tell-tale. This Court, thus, would wish to make
an observation that non-mention of vital facts and
suppressing material particulars bearing effect on the
very maintainability of the suit in the plaint (CS No.1039
of 2017) would tantamount to playing fraud not only on
the Court but also on the parties concerned.
12.2. Article 59 of the Limitation Act, 1963 clearly lays down
that for a suit to be entertained or maintainable for the
purpose of cancelling or setting aside an instrument or
decree or for the rescission of a contract, the period of
limitation prescribed is three years "when the facts
entitling the plaintiff to have the instrument or decree
cancelled or set aside or the contract rescinded first
become known to him". Reference, at this juncture, may
be had to Prem Singh Vrs. Birbal, (2006) 5 SCC 353,
wherein the scope of the Limitation Act, 1963 and
interpretation of Article 59 thereof was discussed vividly.
The Hon‟ble Court held as under:
―11. Limitation is a statute of repose. It ordinarily bars a
remedy, but, does not extinguish a right. The only
exception to the said rule is to be found in Section 27
of the Limitation Act, 1963 which provides that at
the determination of the period prescribed thereby,
limited to any person for instituting a suit for
possession of any property, his right to such
property shall be extinguished.
12. An extinction of right, as contemplated by the
provisions of the Limitation Act, prima facie would be
attracted in all types of suits. The Schedule
appended to the Limitation Act, as prescribed by the
articles, provides that upon lapse of the prescribed
period, the institution of a suit will be barred. Section
3 of the Limitation Act provides that irrespective of
the fact as to whether any defence is set out or is
raised by the defendant or not, in the event a suit is
found to be barred by limitation, every suit
instituted, appeal preferred and every application
made after the prescribed period shall be dismissed.
13. Article 59 of the Limitation Act applies specially
when a relief is claimed on the ground of fraud or
mistake. It only encompasses within its fold
fraudulent transactions which are voidable
transactions.
***
16. When a document is valid, no question arises of its
cancellation. When a document is void ab initio, a
decree for setting aside the same would not be
necessary as the same is non est in the eye of the
law, as it would be a nullity.
17. Once, however, a suit is filed by a plaintiff for
cancellation of a transaction, it would be governed
by Article 59. Even if Article 59 is not attracted, the
residuary article would be.
18. Article 59 would be attracted when coercion, undue
influence, misappropriation or fraud which the
plaintiff asserts is required to be proved. Article 59
would apply to the case of such instruments. It
would, therefore, apply where a document is prima
facie valid. It would not apply only to instruments
which are presumptively invalid. (See Unni Vrs.
Kunchi Amma, ILR (1891) 14 Mad 26 and Sheo
Shankar Gir Vrs. Ram Shewak Chowdhri, ILR (1897)
24 Cal 77).
19. It is not in dispute that by reason of Article 59 of the
Limitation Act, the scope has been enlarged from the
old Article 91 of the 1908 Act. By reason of Article
59, the provisions contained in Articles 91 and 114
of the 1908 Act had been combined.
20. If the plaintiff is in possession of a property, he may
file a suit for declaration that the deed is not binding
upon him but if he is not in possession thereof, even
under a void transaction, the right by way of
adverse possession may be claimed. Thus, it is not
correct to contend that the provisions of the
Limitation Act would have no application at all in the
event the transaction is held to be void.
21. Respondent-1 has not alleged that fraudulent
misrepresentation was made to him as regards the
character of the document. According to him, there
had been a fraudulent misrepresentation as regards
its contents.
22. In Ningawwa Vrs. Byrappa, (1968) 2 SCR 797 this
Court held that the fraudulent misrepresentation as
regards character of a document is void but
fraudulent misrepresentation as regards contents of
a document is voidable stating:
‗The legal position will be different if there is a
fraudulent misrepresentation not merely as to the
contents of the document but as to its character. The
authorities make a clear distinction between
fraudulent misrepresentation as to the character of
the document and fraudulent misrepresentation as
to the contents thereof. With reference to the former,
it has been held that the transaction is void, while in
the case of the latter, it is merely voidable.'
In that case, a fraud was found to have been played
and it was held that as the suit was instituted
within a few days after the appellant therein came
to know of the fraud practised on her, the same was
void. It was, however, held:
‗Article 91 of the Limitation Act provides that a suit
to set aside an instrument not otherwise provided for
(and no other provision of the Act applies to the
circumstances of the case) shall be subject to a three
years' limitation which begins to run when the facts
entitling the plaintiff to have the instrument
cancelled or set aside are known to him. In the
present case, the trial court has found, upon
examination of the evidence, that at the very time of
the execution of the gift deed, Ext. 45 the appellant
knew that her husband prevailed upon her to convey
Surveys Plots Nos. 407/1 and 409/1 of Tadavalga
village to him by undue influence. The finding of the
trial court is based upon the admission of the
appellant herself in the course of her 33 evidence. In
view of this finding of the trial court it is manifest
that the suit of the appellant is barred under Article
91 of the Limitation Act so far as Plots Nos. 407/1
and 409/1 of Tadavalga village are concerned.'
***
28. If a deed was executed by the plaintiff when he was
a minor and it was void, he had two options to file a
suit to get the property purportedly conveyed
thereunder. He could either file the suit within 12
years of the deed or within 3 years of attaining
majority. Here, the plaintiff did not either sue within
12 years of the deed or within 3 years of attaining
majority. Therefore, the suit was rightly held to be
barred by limitation by the trial court.‖
12.3. With regard to Article 58 and Article 113 of the
Limitation Act, 1963, it has been interpreted by the
Hon‟ble Supreme Court of India in the case of Shakti
Bhog Food Industries Ltd. Vrs. The Central Bank of India,
(2020) 6 SCR 538, which is quoted hereunder:
―9. The expression used in Article 113 of the 1963 Act is
―when the right to sue accrues‖, which is markedly
distinct from the expression used in other Articles in
First Division of the Schedule dealing with suits,
which unambiguously refer to the happening of a
specified event. Whereas, Article 113 being a
residuary clause and which has been invoked by all
the three Courts in this case, does not specify
happening of particular event as such, but merely
refers to the accrual of cause of action on the basis
of which the right to sue would accrue.
10. Concededly, the expression used in Article 113 is
distinct from the expressions used in other Articles in
the First Division dealing with suits such as Article
58 (when the right to sue ―first‖ accrues), Article 59
(when the facts entitling the plaintiff to have the
instrument or decree cancelled or set aside or the
contract rescinded ―first‖ become known to him) and
Article 104 (when the plaintiff is ―first‖ refused the
enjoyment of the right). The view taken by the trial
Court, which commended to the first appellate Court
and the High Court in second appeal, would
inevitably entail in reading the expression in Article
113 as-- when the right to sue (first) accrues. This
would be re-writing of that provision and doing
violence to the legislative intent. We must assume
that the Parliament was conscious of the distinction
between the provisions referred to above and had
advisedly used generic expression ‗when the right to
sue accrues' in Article 113 of the 1963 Act.
Inasmuch as, it would also cover cases falling under
Section 22 of the 1963 Act, to wit, continuing
breaches and torts.
11. We may usefully refer to the dictum of a three-Judge
Bench of this Court in Union of India & Ors. v. West
Coast Paper Mills Ltd. & Anr. (2004) 2 SCC 747 =
(2004) 2 SCR 145, which has had an occasion to
examine the expression used in Article 58 in
contradistinction to Article 113 of the 1963 Act. We
may advert to paragraphs 19 to 21 of the said
decision, which read thus:
‗***
20. It was not a case where the respondents
prayed for a declaration of their rights.
The declaration sought for by them as
regards unreasonableness in the levy of
freight was granted by the Tribunal.
21. A distinction furthermore, which is required to
be noticed is that whereas in terms of Article
58 the period of three years is to be counted
from the date when ‗the right to sue first
accrues', in terms of Article 113 thereof, the
period of limitation would be counted from the
date ‗when the right to sue accrues'. The
distinction between Article 58 and Article 113
is, thus, apparent inasmuch as the right to sue
may accrue to a suitor in a given case at
different points of time and, thus, whereas in
terms of Article 58 the period of limitation
would be reckoned from the date on which the
cause of action arose first, in the latter the
period of limitation would be differently
computed depending upon the last day when
the cause of action therefor arose.'
12. Similarly, in Khatri Hotels Private Limited & Anr.
Vrs. Union of India & Anr., (2011) 9 SCC 126, this
Court considered the expression used in Article 58 in
contradistinction to Article 120 of the old Limitation
Act (the Indian Limitation Act, 1908). In paragraph
24, the Court noted thus:
‗24. The Limitation Act, 1963 (for short ―the 1963
Act‖) prescribes time limit for all conceivable
suits, appeals, etc. Section 2(j) of that Act
defines the expression ―period of limitation‖ to
mean the period of limitation prescribed in the
Schedule for suit, appeal or application. Section
3 lays down that every suit instituted, appeal
preferred or application made after the
prescribed period shall, subject to the
provisions of Sections 4 to 24, be dismissed
even though limitation may not have been set
up as a defence. If a suit is not covered by any
specific article, then it would fall within the
residuary article. In other words, the residuary
article is applicable to every kind of suit not
otherwise provided for in the Schedule.'
The distinction between the two Articles (Article
58 and Article 120) has been expounded in
paragraphs 27 to 30 of the reported decision,
which read thus
‗27. The differences which are discernible
from the language of the above
reproduced two articles are:
(i) The period of limitation prescribed
under Article 120 of the 1908 Act
was six years whereas the period of
limitation prescribed under the 1963
Act is three years and,
(ii) Under Article 120 of the 1908 Act,
the period of limitation commenced
when the right to sue accrues. As
against this, the period prescribed
under Article 58 begins to run when
the right to sue first accrues.
28. Article 120 of the 1908 Act was
interpreted by the Judicial Committee in
Bolo Vrs. Koklan, (1929-30) 57 IA 325 =
AIR 1930 PC 270 and it was held: (IA p.
331)
‗There can be no ‗right to sue' until there
is an accrual of the right asserted in the
suit and its infringement, or at least a
clear and unequivocal threat to infringe
that right, by the defendant against
whom the suit is instituted.'
The same view was reiterated in
Annamalai Chettiar Vrs. Muthukaruppan
Chettiar, ILR (1930) 8 Rang 645 and
Gobinda Narayan Singh Vrs. Sham Lal
Singh, (1930-31) 58 IA 125.
29. In Rukhmabai Vrs. Lala Laxminarayan,
AIR 1960 SC 335, the three-Judge Bench
noticed the earlier judgments and
summed up the legal position in the
following words: (Rukhmabai case [AIR
1960 SC 335, AIR p. 349, para 33)
‗33. *** The right to sue under Article 120
of the [1908 Act] accrues when the
defendant has clearly or
unequivocally threatened to infringe
the right asserted by the plaintiff in
the suit. Every threat by a party to
such a right, however ineffective and
innocuous it may be, cannot be
considered to be a clear and
unequivocal threat so as to compel
him to file a suit. Whether a
particular threat gives rise to a
compulsory cause of action depends
upon the question whether that
threat effectively invades or
jeopardizes the said right.'
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.'
Notably, the expression used in Article 113 is similar
to that in Article 120, namely, ―when the right to sue
accrues‖. Hence, the principle underlying this dictum
must apply proprio vigore to Article 113.
13. It is well established position that the cause of
action for filing a suit would consist of bundle
of facts. Further, the factum of suit being
barred by limitation, ordinarily, would be a
mixed question of fact and law. Even for that
reason, invoking Order VII Rule 11 of the CPC is
ruled out. In the present case, the assertion in the
plaint is that the appellant verily believed that its
claim was being processed by the Regional Office
and the Regional Office would be taking appropriate
decision at the earliest. That belief was shaken after
receipt of letter from the Senior Manager of the Bank,
dated 8.5.2002 followed by another letter dated
19.9.2002 to the effect that the action taken by the
Bank was in accordance with the rules and the
appellant need not correspond with the Bank in that
regard any further. This firm response from the
respondent-Bank could trigger the right of the
appellant to sue the respondent-Bank. Moreover, the
fact that the appellant had eventually sent a legal
notice on 28.11.2003 and again on 07.01.2005 and
then filed the suit on 23.02.2005, is also invoked as
giving rise to cause of action. Whether this plea
taken by the appellant is genuine and legitimate,
would be a mixed question of fact and law,
depending on the response of the respondents.‖
12.4. The present case has distinctive feature. As conceded by
Sri Bamadev Baral, learned Advocate for the opposite
party No.1 during the course of hearing that the plaint
in CS No.1039 of 2017 does not contain material with
respect to the orders passed in the interlocutory
applications in CS No.12 of 2006. Only explanation he
could proffer was that the prayers in both the suits are
different. Minute scrutiny of prayers of both the suits
would reveal that while CS No.12 of 2006 was for
recovery of dues from the properties of the opposite
party Nos.2 and 3, in CS No.1039 of 2017 is for a
declaration that the Registered Sale Deeds dated
31.01.2006 to be void, inoperative and not binding on
the opposite party No.1. In effect, what was refused in
Order dated 08.02.2008 in I.A. No.298 of 2006 (CS
No.12 of 2006), in an indirect contrivance, the opposite
party No.1 made an dubious attempt to restrain transfer
of the properties of the opposite party Nos.2 and 3.
12.5. A meaningful reading of plaint would demonstrate that
such a declaration is sought for in order to secure
payment for the purpose of recovery of dues (which was
subject matter of CS No.12 of 2006) from the suit
schedule properties in the event of success on a later
date. In essence, the claim in the first suit and the
second suit would coincide. However, this Court cannot
shut its eyes by ignoring the Orders passed by this
Court in review and revision arising out of CS No.12 of
2006. In the Orders of this Court such dues claimed by
the Union has been protected. It is pertinent to note that
the Hon‟ble Supreme Court of India while did not
interfere with the Judgment/Order of this Court, yet
directed for expeditious adjudication of the suit being CS
No.12 of 2006.
12.6. It is manifest from the record that the opposite party
No.1 being aware of execution of Registered Sale Deeds
on 31.01.2006 and cause of action arose much prior to
three years of the date of filing of CS No.1039 of 2017,
the suit is glaringly time-barred. Order VII, Rule 11(d) of
the CPC states that a plaint shall be rejected if it does
not disclose a cause of action or if the suit is barred by
any law. This provision empowers Court to dismiss cases
at an early stage when it is evident that they cannot
succeed due to setting in period of limitation. The
rationale behind this rule is to prevent unnecessary
litigation and conserve judicial resources.
12.7. It is trite that the question whether the suit is barred by
limitation can be decided at the time of trial for the
question of limitation is mixed question of law and facts,
but on meaningful reading of the plaint, this Court,
having diligently delved into examine the contentions,
averments, submissions and arguments of counsel for
the respective parties, is of the considered view that
under the afore-mentioned premises and material
available in the records of CS No.12 of 2006 and CS
No.1039 of 2017, the opposite party No.1 has created
illusion of cause of action5 by devising clever drafting in
order to avoid the period prescribed under the Limitation
Act, 1963.
12.8. This Court is of the opinion that the learned trial Court
could not have closed its eyes while considering the
petition under Order VII, Rule 11(d) of the CPC filed in
CS No.1039 of 2017, particularly when it was also in
seizin of subject matter in CS No.12 of 2006, wherein
the petition under Order VII, Rule 11 of CPC filed by the
5 The expression "created illusion of cause of action" suggests that a party to the
litigation may have manipulated its pleadings to create an appearance of
legitimacy or urgency in its claims to circumvent limitations set forth by law.
Courts are vigilant about such tactics and will scrutinize pleadings closely to
ensure compliance with procedural requirements.
petitioner was allowed and the order of this Court
depicted clearly that the interest of the opposite party
No.1 was well protected in the event of success in CS
No.12 of 2006.
12.9. This Court further finds that the date of cause of action
mentioned as "12.12.2017" in CS No.1039 of 2017 as
fictional one inasmuch as no material particulars have
been put forth on record to demonstrate that the
opposite party No.1 was in possession of suit schedule
properties. The pleading does not evince the alleged
attempt being made by the petitioner to evict the
opposite party No.1. It could not be established even
prima facie that the opposite party No.1 was at any time
the owner of the suit schedule properties and as Union it
in possession over the properties of the opposite party
Nos.2 and 3, which are transferred by dint of Registered
Sale Deeds bearing Nos.517 and 518 dated 31.01.2006.
12.10. Ramisetty Venkatanna Vrs. Nasyam Jamal Saheb,
2023 SCC OnLine SC 521 quoted as:
―26. In the case of Madanuri Sri Rama Chandra Murthy
Vrs. Syed Jalal, (2017) 13 SCC 174, this Court
observed and held as under:
‗7. The plaint can be rejected under Order 7 Rule
11 if conditions enumerated in the said
provision are fulfilled. It is needless to observe
that the power under Order 7 Rule 11 CPC can
be exercised by the court at any stage of the
suit. The relevant facts which need to be looked
into for deciding the application are the
averments of the plaint only. If on an entire
and meaningful reading of the plaint, it is
found that the suit is manifestly vexatious
and meritless in the sense of not
disclosing any right to sue, the court
should exercise power under Order 7 Rule
11 CPC. Since the power conferred on the court
to terminate civil action at the threshold is
drastic, the conditions enumerated under Order
7 Rule 11 CPC to the exercise of power of
rejection of plaint have to be strictly adhered to.
The averments of the plaint have to be read as
a whole to find out whether the averments
disclose a cause of action or whether the suit is
barred by any law. It is needless to observe
that the question as to whether the suit is
barred by any law, would always depend
upon the facts and circumstances of each
case. The averments in the written statement
as well as the contentions of the defendant are
wholly immaterial while considering the prayer
of the defendant for rejection of the plaint.
Even when the allegations made in the
plaint are taken to be correct as a whole
on their face value, if they show that the
suit is barred by any law, or do not
disclose cause of action, the application
for rejection of plaint can be entertained
and the power under Order 7 Rule 11 CPC
can be exercised. If clever drafting of the
plaint has created the illusion of a cause
of action, the court will nip it in the bud
at the earliest so that bogus litigation will
end at the earlier stage.'
27. In the case of Ram Singh Vrs. Gram Panchayat
Mehal Kalan, (1986) 4 SCC 364, this Court observed
and held that when the suit is barred by any
law, the plaintiff cannot be allowed to
circumvent that provision by means of clever
drafting so as to avoid mention of those
circumstances, by which the suit is barred by
law of limitation. Similar view has been expressed
by this Court in the case of Raj Narain Sarin Vrs.
Laxmi Devi, (2002) 10 SCC 501.‖
12.11. Noteworthy here to have regard to Dilboo Vrs.
Dhanraji, (2000) 7 SCC 702, wherein it has been held,
―20. *** Whenever a document is registered the date
of registration becomes the date of deemed
knowledge. In other cases where a fact could be
discovered by due diligence then deemed knowledge
would be attributed to the plaintiff because a party
cannot be allowed to extend the period of limitation
by merely claiming that he had no knowledge.‖
12.12. This Court, thus, finds substantial force in the
submission of Sri Surya Prasad Misra, learned Senior
Counsel appearing for the petitioners that the clever
drafting of the opposite party No.1 by suppressing
material fact with regard to orders passed in connection
with interlocutory applications during the pendency of
CS No.12 of 2006 created illusory cause of action and
the narration of facts by the opposite party No.1
demonstrably indicates that the Orissa Textiles and
Steels Employees‟ Union had the knowledge about the
transaction of transfer of immovable properties by the
opposite party Nos.2 and 3 in favour of the petitioners
for more than three years of the date of filing civil suit
being CS No.1039 of 2017.
12.13. It is submitted that flimsy reasons have been
ascribed to by the learned 2nd Additional Civil Judge
(Senior Division), Cuttack in the impugned order. The
learned trial Court fell into error by taking cognizance of
the objection raised by opposite party No.1-Orissa
Textile and Steels Employees‟ Union that the cause of
action for the suit arose on 12.12.2017, i.e., the date on
which the defendants/opposite party Nos.2 and 3 sought
to evict opposite party No.1-plaintiff "from peaceful
possession over the suit land and tried to change the
nature and character of the suit land". Such a stand is
vehemently objected to by the learned Senior Counsel,
inasmuch as it is a myth that opposite party No.1 had
ever been in "peaceful possession over the suit land". To
amplify, Sri Surya Prasad Misra, learned Senior Counsel
appearing for the petitioners explained that opposite
party No.1-Orissa Textiles and Steels Employees‟ Union
can at no stretch of imagination be construed to be the
title holder of the properties nor did the Union, at any
time possessed such properties. He further added that
after the transfer of immovable property by dint of
Registered Sale Deed Nos.517 and 518, dated
31.01.2006, the petitioner No.1 has been in possession
of the said properties and the employees of the factory
were never in possession of said properties. To refute
such assertion of the learned Senior Advocate, no
evidence on record could be referred to by Sri Bamadev
Baral, learned Advocate representing the opposite party
No.1 to suggest that the Union was in possession of the
properties notwithstanding the same being transferred
by virtue of said Registered Sale Deeds and Order dated
08.02.2008 passed by the learned 2nd Additional Civil
Judge, Senior Division, Cuttack in on the petition of
Union being I.A. No.298 of 2006 arising out of CS No.12
of 2006 refusing to restrain the opposite party Nos.2 and
3 from transferring such properties.
12.14. It is urged by the learned Senior Counsel that
despite falsity of fact affirmed by the opposite party No.1
that cause of action arose on 12.12.2017, the suit
bearing Civil Suit No.1039 of 2017 is clearly barred by
limitation and the learned 2nd Additional Civil Judge
(Senior Division), Cuttack ought to have allowed the
petition under Order VII, Rule 11 of the CPC. The
records manifestly reveal that opposite party No.1-
Plaintiff was very much aware and had knowledge that
the Registered Sale Deeds were executed in 2006. Had
the Orissa Textiles and Steels Employees‟ Union been
sanguine about its claims and prejudices, it should have
approached the Court concerned within the period
prescribed in the Limitation Act.
12.15. Sri Bamadev Baral, learned counsel submitted that
during the pendency of the suit bearing Civil Suit No. 12
of 2006, if the petitioners are allowed to go unhindered
without facing trial in CS No. 1039 of 2017, in the event
that a decree is passed in Civil Suit No. 12 of 2006 in
favor of Opposite Party No. 1, which is still pending
before the learned 5th Additional Civil Judge (Senior
Division), Cuttack, the entire exercise would be rendered
futile; ultimately, the decree with respect to statutory
dues to be paid by Opposite Party Nos. 2 and 3 would
possibly not be executed. But such reply of Sri Bamadev
Baral, learned Advocate cannot be found countenanced
with inasmuch as this Court in Order dated 11.12.2006
passed in RVWPET No.118 of 2006 (relating to CS No.12
of 2006) protected the interest of the opposite party No.1
by clarifying that "the opposite party to deposit the sale
proceeds of machines and materials". This apart, as it
was brought to the notice of this Court, the opposite
party No.1-Union was given opportunity to file
application. Considering such application, vide Order
dated 08.02.2008, the learned 2nd Additional Civil Judge,
Senior Division, Cuttack has directed for deposit of sale
proceeds not only of the machines and materials, but
also the lands. Therefore, the suit being CS No.1039 of
2017 lacks cause of action.
12.16. Thus, the prayer made in said suit for a declaration
of Registered Sales Deeds dated 31.01.2006 as void,
inoperative in law and not binding in the year 2017 is
not only stale but also is hit by law of limitation.
13. Applying the ratio of decisions referred to supra and
taking into consideration the factual merit of the matter,
this Court is of the opinion that the plaint in CS No.1039
of 2017 ought to have been rejected in exercise of power
under clauses (a) and (d) of Rule 11 of Order VII, CPC,
being vexatious, illusory cause of action and barred by
limitation. By clever drafting without disclosing the
orders protecting the interest of the opposite party No.1
allowing the petition of the petitioners under Order VII,
Rule 11 of the CPC in CS No.12 of 2006 and suppressing
to disclose refusal of the learned 2nd Additional Civil
Judge, Senior Division, Cuttack to restrain the opposite
party Nos.2 and 3 from transferring properties, the relief
as sought for in CS No.1039 of 2017 does not stand to
reason. For the same reason, considering the averments
in the plaint and documents relied upon thereto, the
plaint deserves to be rejected. When on scrutiny of
germane material facts based on evidence on record
clearly establishes that the suit is filed beyond the
period stipulated under the Limitation Act, 1963, there
is no restriction on the learned 2nd Additional Civil
Judge, Senior Division, Cuttack to exercise power under
Order VII, Rule 11 of the CPC.
14. In the wake of the above and for the reasons stated
supra, the impugned Order dated 30.09.2019 passed in
consideration of petition of the petitioners under Order
VII, Rule 11 of the CPC for rejection of plaint in CS
No.1039 of 2017 is untenable in the eye of law and the
same deserves to be quashed and set aside. This Court
does so holding that it is a fit case where the 2nd
Additional Civil Judge, Senior Division, Cuttack should
have exercised power under Order VII, Rule 11 of the
CPC.
15. Ex consequenti, the petition of the petitioners under
Order VII, Rule 11 of the Code of Civil Procedure, 1908 is
allowed and consequently, the plaint in the suit, being
CS No.1039 of 2017, stated to be pending in the file of
the 5th Additional Civil Judge, Senior Division, Cuttack,
stands rejected.
16. The Civil Revision Petition stands allowed, but in the
circumstances, there shall be no order as to costs.
Signature Not (MURAHARI SRI RAMAN)
Verified JUDGE
Digitally Signed
Signed by: LAXMIKANT High Court of Orissa, Cuttack
MOHAPATRA
Designation: Senior Stenographer The 03rd February, 2025//MRS/Laxmikant/Suchitra
Reason: Authentication
Location: High Court of Orissa,
Cuttack
Date: 03-Feb-2025 18:16:04
