Shankar Lal vs Radheshyam (2023:Rj-Jd:26289)
2023 Latest Caselaw 6100 Raj

[2023:RJ-JD:26289]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 51/2022

Shankar Lal S/o Puna Ram, Aged About 67 Years, R/o Sameliya, Tehsil Bheem, Distt. Rajsamand.

----Petitioner Versus

1. Radheshyam S/o Panna Ram, R/o Regar Colony, Bheem, Tehsil Bheem, Distt. Rajsamand. (Plaintiff)

2. State of Rajasthan, Through Tehsildar Bheem, Tehsil Bheem, Distt. Rajsamand. (Defendant)

----Respondents

For Petitioner(s) : Mr. Gaju Singh For Respondent(s) : Mr. Khet Singh Rajpurohit Mr. Ritu Raj Singh Bhati

HON'BLE MS. JUSTICE REKHA BORANA

Order

19/08/2023

1. The present revision petition has been preferred against the

order dated 21.03.2022 passed by the Senior Civil Judge, Bheem,

Rajsamand in Civil Original No.3/2022 whereby the application

under Order VII Rule 11 of the Code of Civil Procedure as

preferred by the defendant has been rejected.

2. The ground raised in the application under Order VII Rule 11,

CPC was that the suit has been filed on the basis of a forged and

fabricated document dated 25.11.2014 (the sale deed) wherein no

consideration amount has been specified and therefore, the said

document is void from its inception. An averment that the suit has

not been preferred within a period of three years has also been

made and it was prayed that the suit be dismissed being time

[2023:RJ-JD:26289] (2 of 6) [CR-51/2022]

barred. The learned Court below concluded that the question

whether the document in question was forged and fabricated,

could be decided only after evidence being led on the same and

the same cannot be decided on an application under Order VII

Rule 11, CPC.

3. So far as the ground of the suit being time barred is

concerned, the Court below held that a specific averment was

made in the plaint that there being an interim order passed by the

revenue Court qua the land in question, the sale deed although

executed, could not be presented for registration and therefore,

the said question also, being factual, could be decided only after

evidence being led on the same.

4. Learned counsel for the petitioner submitted that a bare

reading of the pleadings as made in the plaint itself clarifies that

the suit was time barred as even the proceedings before the

Revenue Court wherein an interim order was alleged to be

operating, were decided in the year 2018 whereas the suit was

preferred in the year 2022 which, on the face of it, is bared by

time. In support of his submission, counsel relied upon the

judgment of Hon'ble Apex Court in C.S. Ramaswamy vs. V.K.

Senthil and Ors., (2022) AIR (SC) 4724 and this Court in

Sachu Ram & Anr. vs. Smt. Parmeshwari Bai, 2018(2) CJ

(Civ.) (Raj) 1069.

5. Per contra, learned counsel for the respondents submitted

that the limitation in the present matter would commence only

after the refusal/denial of the defendant in terms of Article 54 of

the Limitation Act. It has been submitted that the defendant,

never ever, denied for presentation of the document rather

[2023:RJ-JD:26289] (3 of 6) [CR-51/2022]

repeatedly assured for doing so. Therefore, the limitation, if any,

would commence only from the date of service of notice i.e.

24.12.2021 which was served on the defendant calling upon him

to get the sale deed registered. In support of his submission,

learned counsel for the respondents relied upon the Hon'ble Apex

Court judgment in Shakti Bhog Food Industries Ltd. vs.

Central Bank of India and Anr., AIR 2020 SC 2721.

6. Heard learned counsel for the parties and perused the

material available on record.

7. For proper adjudication of the case, the averments as made

in the plaint are relevant. It has been averred by the plaintiff as

under:

"1--------------

2- ;g fd izfroknh la[;k 1 }kjk 12]000@& :i;s v{kjs ckjg gtkj :i;s ds LVkEi [kjhn dj mDr Hkwfe dk oknh ds i{k c;ukek Vkbi djok dj izfroknh la[;k 1 }kjk vaxw"B fu'kkuh dj xokgku ds lkeus oknh ls izfrQy dh jkf'k 2]50]000@& :i;s v{kjs nks yk[k ipkl gtkj :i;s udn izkIr dj fy;s fQj iath;u ds leLr nLrkostkr rS;kj dj iath;u dh lkjh dk;Zokgh iwjh djus ds i'pkr izfroknh la[;k 1 us oknh dks dgk fd dqN rduhdh o dkuwuh vM+pu vk tkus ls vkt jftLVªh ugh gks ik,xh dkuwuh vM++pu ds gV tkus ds ckn og rglhy esa tkdj jftLVªh djok nsaxsA 3- ;g fd mDRk oknxzLr vkjkft;kr ls lEcf/kr jdcs ckcr~ dqN O;fDr;ksa }kjk ftyk dyDVj egksn; jktlean ds ;agk ij okn is'k dj j[ks Fks tks fopkjk/khu Fks rFkk LFkxu vkns'k tkjh Fks bl dkj.k fnukad 25@11@2014 dks mDr vkjkft;kr dh jftLVªh ugh gks ikbZ FkhA blds ckn fnukad 26@04@2018 dks mDr leLr okn dk fuLrkj.k gks x;k rFkk izfroknh la[;k 1 ds f[kykQ tks okn Fkk oks Hkh [kkfjt gks x;kA blds ckn oknh }kjk izfroknh la[;k 1 dks dgk x;k fd vc dksbZ dkuwuh vM+pu ugh gS vki mDr Hkwfe dh jftLVªh esjs uke ij djokvks rks izfroknh la[;k 1 us oknh dks vk'oklu fn;k fd oks tYnh gh mDr Hkwfe dh jftLVªh oknh ds uke ij djok nsxkA 4--------------

5--------------

[2023:RJ-JD:26289] (4 of 6) [CR-51/2022]

6--------------

7- ;g fd mDr fodz; vuqcU/k ds fu"iknu ds ckn ls gh oknh }kjk izfroknh la[;k 1 dks dbZ ckj ekSf[kd :i ls dgk x;k fd oks mDr mDr Hkwfe dh jftLVªh oknh ds uke ij djok, fdUrq izfroknh la[;k 1 lnSo VkyeVksy djrk jgk rFkk mlus vkt rd mDr Hkwfe dh jftLVªh oknh ds uke ij ugh djokbZA izfroknh la[;k 1 }kjk fodz; vuqcU/k ds vuqlkj mDr Hkwfe dh oknh ds uke jftLVªh ugh djokbZ gSA oknh mDr Hkwfe dh jftLVªh mlds uke djokus dks lnSo rS;kj o rRij jgk gS rFkk oknh }kjk jftLVªh esa gksus okys leLr O;; dk Hkqxrku dj fn;k gS rFkk vkxs Hkh iath;u esa O;; gksxk ml O;; dks Hkh oknh ogu djus dks lnSo rS;kj o rRij jgk gS rFkk ckj ckj izfroknh la[;k 1 dks ekSf[kd :i ls mDr Hkwfe dh jftLVªh oknh ds uke ij djokus dks dgk gS fdUrq izfroknh la[;k 1 }kjk vkt rd mDr Hkwfe dh jftLVªh oknh ds uke ij ugh djokbZ gSA 8- ;g fd oknh }kjk fnukad 24@12@2021 dks izfroknh la[;k 1 dks uksfVl Hkh fn;k fd mDr Hkwfe d jftLVªh 7 fnu esa oknhx.k ds uke ij djokvks fdUrq izfroknhx.k dks uksfVl feyus ds ckn Hkh izfroknhx.k }kjk vkt rd oknhx.k ds uke ij mDr Hkwfe dh jftLVªh ugh djokbZ gSA fodz; vuqcU/k o izfroknh la[;k 1 ds ekSf[kd bZdjkj ds vuqlkj oknh izfroknh la[;k 1 }kjk fu"ikfne fodz;i= dk iath;u djokus dk dkuwuu vf/kdkjh gS oknh us vius ftEes ds lHkh dk;ksZ dks iwjk dj fy;k gS rFkk oknh }kjk izfrQy dh lEiw.kZ jkf'k :i;s 2]50]000@& v{kjs nks yk[k ipkl gtkj :i;s dk Hkqxrku dj fn;k x;k gS rFkk nLrkost fu"iknu ,oa iath;u esa gkssus okys O;; dk Hkqxrku dj fd;k x;k gS rFkk ih;u lEcU/kh vU; dksbZ Hkh vfrfjDr O;; ns; gksxk rks oknh ogu djus ds fy;s 'kq: ls rS;kj] bPNqd ,oa rRij jgk gS ,oa vHkh Hkh rS;kj o rRij gSA 9- ;g fd oknhx.k }kjk fnukad 24@12@2021 dks uksfVl nsdj izfroknh la[;k 1 dks mDr Hkwfe dh jftLVªh oknh ds uke ij djokus ds fy;s dgk fdUrq izfroknh la[;k 1 us jftLVªh djokus ls lkQ euk dj fn;kA ftlls bdjkj dh 'krkZuqlkj oknh mDr vkjkth ds izfroknh la[;k 1 }kjk fu"ikfnr fodz;i= dk iath;u vius uke ij djokus dk vf/kdkjh gSA "

8. A bare reading of the plaint makes it clear that a specific

averment has been made that the document could not be

registered at the relevant point of time because there was some

interim order operating. The fact as to when the interim order was

[2023:RJ-JD:26289] (5 of 6) [CR-51/2022]

passed, when the proceedings wherein the interim order was

passed were decided, when the plaintiff came to know about the

disposal of the said proceedings, when was the defendant called

upon in pursuance to the said decision for registration of the

document, when the defendant denied for the same, etc. are all

the questions which can be decided only after evidence being led

by the parties and an adjudication being made by the Court on the

said facts.

9. So far as the judgments relied upon by counsel for the

petitioner are concerned, the ratio laid down in the case of Sachu

Ram (supra) would not apply to the present matter as that was

the matter wherein the outer limit of performance of the

agreement to sell was fixed and there was no extension of time for

performance of the contract. Therefore, the Court held the suit to

be filed beyond the limitation prescribed under Article 54 of the

Limitation Act. So far as the case of C.S. Ramaswamy (supra) is

concerned, the ratio as laid therein would also not apply to the

present matter as in the opinion of this Court, the present is not a

matter of clever drafting to bring the suit within limitation. In

Shakti Bhog Food Industries Ltd.'s case (supra), the Hon'ble

Apex Court held as under:

"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."

So far as the present matter is concerned, the averments as

made in the plaint, if taken on their face value, do not prima facie

show that the suit is barred by limitation. The issue of limitation

[2023:RJ-JD:26289] (6 of 6) [CR-51/2022]

in the present matter is definitely a mixed question of fact and law

which can be decided only after the evidence being led.

10. In the opinion of this Court, the impugned order as passed

by the learned Court below is totally in consonance with law and

does not deserve any interference. The revision petition is

therefore, dismissed.

11. The stay petition also stands dismissed.

(REKHA BORANA),J 15-Sachin/-

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